City of St. Albans v. Arsenault - Decision on Motion ( 2019 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 38-3-19 Vtec
City of St. Albans v Ross Arsenault
ENTRY REGARDING MOTION
Count 1, Municipal Enforcement (38-3-19 Vtec)
Title: Motion for Default Judgment (Motion 2)
Filer: City of St. Albans
Attorney: Colin K. McNeil
Filed Date: July 25, 2019
No response filed
The motion is DENIED.
The City of St. Albans (“City”) seeks judgment by default against Ross Arsenault
(“Defendant”), due to Defendant’s failure to timely file an answer to the City’s complaint in the
above-captioned municipal enforcement action.
The record reflects that Defendant has not filed an answer, nor has he filed an objection
to the City’s default motion. However, Defendant has filed a motion to dismiss the City’s
complaint, which motion we have today denied by separate Entry Order. While a motion to
dismiss is not a responsive pleading pursuant to V.R.C.P. 7(a), its filing suspends a defendant’s
obligation to file and answer or other responsive pleading. Neal v. Brockway, 136 Vt. 119, 122
(1936) (holding that the proper course of action when granting a “motion to dismiss prior to
service of a responsive pleading is to dismiss with leave to amend”). When a trial court denies a
defendant’s motion to dismiss, which was filed before a responsive pleading, “the defendant is
not required to file an answer until ten days after notice that the [dismissal] motion is denied . .
..” Andrus v. Dunbar, 2005 VT 48, ¶ 17, 178 Vt. 554 (2005)(mem).
The Andrus precedent directs that we deny the City’s motion for default judgment. Given
that we have today denied Defendant’s motion to dismiss the City’s complaint, we direct that
Defendant shall have until Monday, September 30, 2019 to file his answer and other responsive
pleadings. If he fails to do so, the City will then be entitled to re-file its motion for default
judgment.
So Ordered.
City of St. Albans v. Arsenault, No. 38-3-19 Vtec (EO on Motion for Default) (09-18-2019) Page 2 of 2.
Electronically signed on September 19, 2019 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
Notifications:
Colin K. McNeil (ERN 5202), Attorney for Plaintiff City of St. Albans
Timothy G. Hurlbut (ERN 5109), Attorney for Defendant Ross Arsenault
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