1:17-cv-00801-TDS-JEP LOSTUTTER v.

COOK
THOMAS D. SCHROEDER, presiding
JOI ELIZABETH PEAKE, referral
Date filed: 09/05/2017
Date terminated: 11/20/2018
Date of last filing: 11/20/2018

History
Doc.
Dates Description
No.
Filed & Entered: 09/05/2017 Case Assigned
Docket Text: Case ASSIGNED to JUDGE THOMAS D. SCHROEDER and
MAG/JUDGE JOI ELIZABETH PEAKE. (Garland, Leah)
1 Filed & Entered: 09/05/2017 Application to Proceed IFP
Terminated: 09/20/2017
Docket Text: APPLICATION to Proceed IFP by DERIC JAMES LOSTUTTER.
(Garland, Leah)
2 Filed & Entered: 09/05/2017 Complaint
Docket Text: COMPLAINT against SAMANTHA COOK, filed by DERIC JAMES
LOSTUTTER. (Attachments: # (1) Envelope - Front and Back) (Garland, Leah)
3 Filed & Entered: 09/05/2017 Civil Cover Sheet
Docket Text: CIVIL COVER SHEET. (Garland, Leah)
Filed & Entered: 09/06/2017 Case Referred for Screening
Terminated: 09/14/2017
Docket Text: CASE REFERRED for Screening. (Garland, Leah)
Filed & Entered: 09/14/2017 Motions Referred
Docket Text: Motions Referred to MAG/JUDGE JOI ELIZABETH PEAKE RE: [1]
APPLICATION to Proceed IFP. (Garland, Leah)
4 Filed & Entered: 09/20/2017 Order on Motion for Application to Proceed
IFP
Docket Text: ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 09/20/2017,
that Plaintiff in the above-named action be, and is hereby, permitted to file and prosecute
said action in this Court without prepayment of fees or giving security therefor, subject to
the conditions set forth below. FURTHER ORDERED that, as a condition of Plaintiff's
proceeding in forma pauperis, Plaintiff shall, within sixty (60) days after the date of this
Order, submit to the Clerk an initial payment of $3.95 (which represents 20% of the
greater of the average monthly deposits into or the balance in Plaintiff's account for the 6-
month period immediately preceding filing of this complaint). FURTHER ORDERED
that, as a condition of Plaintiff's proceeding in forma pauperis, Plaintiff's custodian and/or
 trust officer shall be directed to pay to the Clerk of this Court 20% of all deposits to his
account starting with the month of November of 2017, and thereafter each time that the
amount in the account exceeds $10.00, until the $350.00 filing fee has been paid.
FURTHER ORDERED that all payments shall be designated as made in payment of the
filing fee for Civil Action No. 1:17CV801, and shall be paid to the Clerk, U.S. District
Court for the Middle District of North Carolina. In the event Plaintiff is transferred to
another institution, the balance due shall be collected and paid to the Clerk by the
custodian at Plaintiff's next institution. A copy of this Order shall be sent to Plaintiff's
current custodian. FURTHER ORDERED that this action be filed, but that further
proceedings and service of summons be stayed until Plaintiff has either (1) submitted to
the Court the initial payment noted above, or (2) in the alternative has submitted a motion
for relief from the stay, and a statement made under penalty of perjury that he has not had
access to any funds for the initial payment noted above for the 60-day period. FAILURE
TO COMPLY WITH THIS ORDER IN A TIMELY MANNER WILL RESULT IN
DISMISSAL OF THIS ACTION WITHOUT FURTHER NOTICE TO PLAINTIFF.
FURTHER ORDERED that upon receipt of the $3.50 initial payment, the Clerk shall send
Plaintiff a summons for each defendant named in the Complaint. Plaintiff must fill out a
summons for each defendant, including an address suitable for service, and then return the
summons(es) to the Clerk. Failure to provide an address wherein service may be made on
any defendant will result in the dismissal of the action as to all such unserved defendants.
FURTHER ORDERED that the U.S. Marshal, upon return of the properly completed
summons(es), shall serve the summons and complaint upon the defendant(s). (Garland,
Leah)
5 Filed & Entered: 10/16/2017 Notice (Other)
Docket Text: NOTICE re: Payment of fee, filed by DERIC JAMES LOSTUTTER.
(Attachments: # (1) Request for Withdrawal of Inmate's Personal Funds, # (2)
TRULINCS Account Transactions - Personal Inmate Information, # (3) Envelope - Front
and Back) (Sheets, Jamie)
Filed: 10/20/2017 Receipt of Funds
Entered: 10/23/2017
Docket Text: Receipt of Funds in the amount of $ 3.50. Receipt Number #NCM039080.
(Sheets, Jamie)
Filed: 11/02/2017 Receipt of Funds
Entered: 11/03/2017
Docket Text: Receipt of Funds in the amount of $.45. Receipt Number #NCM039234.
(Sheets, Jamie)
6 Filed & Entered: 11/03/2017 Summons Issued
Docket Text: Summons Issued as to SAMANTHA COOK. (Sheets, Jamie)
7 Filed & Entered: 11/03/2017 Notice of Right to Consent
Docket Text: Notice of Right to Consent. U.S. Marshal shall serve the attached form on all
parties. (Attachments: # (1) Consent Form) (Sheets, Jamie)
8 Filed: 12/11/2017 Notice (Other)
 Entered: 12/12/2017
Docket Text: NOTICE re: Filing Fee Compliance, filed by DERIC JAMES LOSTUTTER.
(Attachments: # (1) Envelope - Front and Back) (Sheets, Jamie)
Filed & Entered: 12/22/2017 Receipt of Funds
Docket Text: Receipt of Funds in the amount of $ 4.00. Receipt Number #NCM039812.
(Sheets, Jamie)
9 Filed & Entered: 03/05/2018 USMS Return Unexecuted
Docket Text: USMS Return Unexecuted as to SAMANTHA COOK. (Sheets, Jamie)
10 Filed & Entered: 03/21/2018 Failure to Make Service Letter
Terminated: 06/29/2018
Docket Text: Notice to Plaintiff of Failure to Make Service Within 90 Days as to
Defendant Cook. (Engle, Anita)
11 Filed & Entered: 03/30/2018 Motion for Extension of Time
Terminated: 04/26/2018
Docket Text: MOTION for Extension of Time to Serve Defendant filed by DERIC
JAMES LOSTUTTER. (Attachments: # (1) Text of Proposed Order, # (2) Exhibit A, # (3)
Cover Letter, # (4) Envelope - Front and Back) (Sheets, Jamie)
12 Filed: 04/02/2018 Motion for Leave
Entered: 04/03/2018
Terminated: 04/26/2018
Docket Text: MOTION by DERIC JAMES LOSTUTTER Requesting Leave to Conduct
Early Discovery (Fed. R. Civ. P. 26) (Attachments: # (1) Text of Proposed Order, # (2)
Envelope - Front and Back)(Daniel, J)
13 Filed: 04/02/2018 Brief
Entered: 04/03/2018
Docket Text: BRIEF filed by DERIC JAMES LOSTUTTER re: [12] MOTION
Requesting Leave to Conduct Early Discovery (LR 7.3). (Attachments: # (1) Envelope -
Front and Back)(Daniel, J)
Filed & Entered: 04/03/2018 Motions Referred
Docket Text: Motion Referred to MAG/JUDGE JOI ELIZABETH PEAKE RE: [11]
MOTION for Extension of Time. (Engle, Anita)
Filed & Entered: 04/04/2018 Motions Referred
Docket Text: Motion Referred to MAG/JUDGE JOI ELIZABETH PEAKE RE: [12]
MOTION Requesting Leave to Conduct Early Discovery (Fed. R. Civ. P. 26).(Engle,
Anita)
14 Filed & Entered: 04/26/2018 Order on Motion for Extension of Time
Docket Text: ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 4/26/2018;
that the Motion for Extension of Time [Doc. #[11]] is GRANTED, and the time for
service under Rule 4 is extended for 90 days from the date of this Order. FURTHER that
the Motion for Early Discovery [Doc. #[12]] is DENIED, without prejudice to Plaintiff
 proceeding with service by alternate means, including publication. FURTHER that the
Court requests the United States Marshal to again attempt service of the summons and
complaint at the address provided on the summons, in light of the concerns that Defendant
is attempting to evade service in this case. (Sheets, Jamie)
15 Filed & Entered: 06/05/2018 Notice of Change of Address
Docket Text: NOTICE of Change of Address by DERIC JAMES LOSTUTTER.
(Attachments: # (1) Envelope - Front and Back)(Sheets, Jamie)
16 Filed: 07/30/2018 Declaration of Proof of Service
Entered: 07/31/2018
Docket Text: Declaration of Service of Process on Defendant filed by DERIC JAMES
LOSTUTTER. (Attachments: # (1) Exhibit A, # (2) Envelope - Front and Back) (Daniel,
J)
17 Filed: 07/30/2018 Affidavit of Service
Entered: 07/31/2018
Docket Text: AFFIDAVIT OF SERVICE of Process by Publication filed by DERIC
JAMES LOSTUTTER. (Attachments: # (1) Exhibit A, # (2) Envelope - Front and Back)
(Daniel, J)
18 Filed: 08/06/2018 Motion for Entry of Default
Entered: 08/07/2018
Terminated: 08/08/2018
Docket Text: MOTION entitled "Request for Entry of Default" filed by DERIC JAMES
LOSTUTTER. (Attachments: # (1) Envelope - Front and Back) (Sheets, Jamie)
19 Filed: 08/06/2018 Motion for Default Judgment
Entered: 08/07/2018
Terminated: 11/15/2018
Docket Text: MOTION for Default Judgment filed by DERIC JAMES LOSTUTTER.
(Attachments: # (1) Envelope - Front and Back) (Sheets, Jamie)
Filed & Entered: 08/08/2018 Motions Submitted
Docket Text: Motion Submitted to CHIEF JUDGE THOMAS D. SCHROEDER: [19]
MOTION for Default Judgment. (Engle, Anita)
20 Filed & Entered: 08/08/2018 Order on Motion for Entry of Default
Docket Text: ***SET ASIDE*** Clerk's Entry of Default signed by JOHN S.
BRUBAKER on 8/8/2018 for failure to file or serve an answer or otherwise respond to the
claims, default is hereby entered against Defendant SAMANTHA COOK. (Sheets, Jamie)
Modified on 11/15/2018 to mark set aside per [27] Memorandum Order. (Sheets, Jamie)
21 Filed & Entered: 08/08/2018 USMS Return Unexecuted
Docket Text: USMS Return Unexecuted (additional attempt as ordered by Judge) as to
SAMANTHA COOK. (Sheets, Jamie)
22 Filed & Entered: 08/09/2018 Memorandum
 Docket Text: BRIEF in Support of [19] MOTION for Default Judgment, filed by DERIC
JAMES LOSTUTTER. (Attachments: # (1) Exhibit A - Incident/Investigation Report, #
(2) Exhibit B - Mediation Agreement, # (3) Exhibit C - Social Media Conversation, # (4)
Envelope - Front and Back) (Sheets, Jamie)
23 Filed & Entered: 08/20/2018 Mail Returned
Docket Text: Mail Returned as Undeliverable re [20] Order on Motion for Entry of
Default addressed to SAMANTHA COOK, 116 CROSS STREET, WINTERSVILLE,
OH 43953 - No longer at address. (Sheets, Jamie)
24 Filed: 08/23/2018 Motion to Dismiss
Entered: 08/24/2018
Terminated: 11/15/2018
Docket Text: ***STRICKEN*** MOTION to Dismiss filed by SAMANTHA COOK.
Response to Motion due by 9/17/2018. (Attachments: # (1) Exhibit A, # (2) Exhibit B, #
(3) Envelope - Front and Back) (Sheets, Jamie) Modified on 11/15/2018 to mark stricken
per [27] Memorandum Order. (Sheets, Jamie)
25 Filed & Entered: 08/24/2018 Roseboro Letter - Right to Respond
Docket Text: Roseboro Letter regarding Right to Respond to [24] Motion to Dismiss.
(Sheets, Jamie)
26 Filed & Entered: 09/10/2018 Response in Opposition to Motion
Docket Text: RESPONSE in Opposition re [24] MOTION to Dismiss filed by
SAMANTHA COOK, filed by DERIC JAMES LOSTUTTER. Replies due by 9/24/2018.
(Attachments: # (1) Envelope - Front and Back) (Sheets, Jamie)
Filed & Entered: 10/01/2018 Motions Submitted
Docket Text: Motion Submitted to CHIEF JUDGE THOMAS D. SCHROEDER: [24]
MOTION to Dismiss. (Engle, Anita)
27 Filed & Entered: 11/15/2018 Memorandum and Opinion
Docket Text: MEMORANDUM ORDER, signed by CHIEF JUDGE THOMAS D.
SCHROEDER on 11/15/2018; that Lostutter's motion for default judgment (Doc. [19]) is
DENIED, the entry of default (Doc. [20]) is SET ASIDE, and Cook's motion to dismiss
(Doc. [24]) is STRUCK. (Sheets, Jamie)
Filed & Entered: 11/19/2018 Motions Submitted
Docket Text: Motion Submitted to CHIEF JUDGE THOMAS D. SCHROEDER: [28]
MOTION to Dismiss. (Engle, Anita)
28 Filed & Entered: 11/19/2018 Motion to Dismiss
Terminated: 11/20/2018
Docket Text: MOTION to Dismiss Without Prejudice filed by DERIC JAMES
LOSTUTTER. Response to Motion due by 12/13/2018. (Attachments: # (1) Envelope -
Front and Back) (Sheets, Jamie)
29 Filed & Entered: 11/20/2018 Order on Motion to Dismiss
Docket Text: ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on
11/20/2018; the court will treat it as a notice of dismissal pursuant to Federal Rule of Civil
Procedure 41(a)(1)(A)(i). The action is therefore DISMISSED WITHOUT PREJUDICE
upon Lostutter's notice of dismissal. The Clerk of Court is instructed to close this file.
(Sheets, Jamie)