FHL, Inc. et al v. Walker et al
OPINION AND ORDER: it is ORDERED that: (1) Plfs FHL, Inc. and Christopher Yannon's 38 motion for entry of default is granted; (2) Default is entered against dft Harry James Walker. Signed by Honorable Judge Myron H. Thompson on 3/7/2016. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
FHL, INC. and CHRISTOPHER
HARRY JAMES WALKER,
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiffs FHL, Inc. and Christopher Yannon filed
this case against defendant Harry James Walker seeking
misrepresentations and misappropriation of money Yannon
and others invested in FHL.
Jurisdiction is proper
under 28 U.S.C. § 1332 (diversity).
This cause is now
before the court on plaintiffs’ motion for entry of
For the following reasons, the motion will be
methods, plaintiffs had Walker personally served with a
Service (doc. no. 15).
Walker then filed a pro se
answer to the complaint, in which he generally denied
(presumably then-current) address.
On March 14, 2014, the court issued a memorandum
opinion and order requiring that the plaintiffs file an
However, sometime before issuance
informing the court of his new address; the copy of the
opinion mailed to him was returned by the post office
as undeliverable, with a notation indicating that he
CM/ECF Docket Entry on August 18, 2014.
Almost all of
the court’s correspondence to Walker has been returned
undeliverable as well.1
See CM/ECF Docket Entries at
August 11 and 25, September 8 and 22, October 23, and
December 1, 2014, and January 11, 2016.
complaint and served a copy of it on Walker via mail to
the address he had provided the court in his answer.
See Certificate of Service (doc. no. 21) at 12.
correspondence was likewise returned as undeliverable
with a notation indicating that he moved and had not
Christopher Yannon (doc. no. 38-1) at 4.
of the documents plaintiffs have served Walker by mail
have been returned as undeliverable.
never answered the amended complaint.
In September 2014, the court held a hearing, which
Walker did not attend.
After the hearing, plaintiff
1. Two court orders entered on December 2, 2015
(doc. no. 36), and December 22, 2015 (doc. no. 40),
were not returned to the court as undeliverable.
However, it appears that Walker’s address is still not
valid, for the court’s January 5, 2016, order (doc. no.
41) was returned as undeliverable.
See CM/ECF Docket
Entry at January 11, 2016.
Yannon hired a private investigator to find Walker, but
Affidavit of Christopher Yannon (doc. no. 38-1) at 5.
On December 16, 2015, plaintiffs filed a request
that the clerk of court enter default and a default
judgment against Walker in the amount of $ 100,000 for
Yannon and $ 350,000 for FHL.
The clerk declined to
grant the request, as Walker had filed an answer. See
CM/ECF Docket Entry at December 21, 2015 (“Clerk will
not enter a default pursuant to the Request for Entry
of Default [Doc. 3] as the defendant Harry James Walker
filed an Answer [Doc. 18].
All correspondence after
that was returned undelivered.
then construed the plaintiffs’ request as a motion for
See Order (doc. no. 41).
The time to respond
has come and gone, with no response from Walker.
“When a party against whom a judgment for affirmative
otherwise, the clerk must enter the party's default.”2
“Despite the Rule's explicit statement
that the ministerial act of entering a party's default
on the record of the case ‘must’ be accomplished by
‘the clerk,’ courts and commentators alike have held
CV-09-S-773-NW, 2013 WL 3357167, at *1 (N.D. Ala. July
2. Walker’s pro se status does not excuse him from
application of Rule 55.
Although a pro se litigant’s
pleadings are not held to the same standard as those
filed by an attorney, a pro se litigant is not exempt
from Rule 55.
See, e.g., Moon v. Newsome, 863 F.2d
835, 837 (11th Cir. 1989) (“[O]nce a pro se litigant is
in court, he is subject to the relevant law and rules
of court, including the Federal Rules of Civil
1, 2013) (Smith, J.).
In other words, “[t]he fact that
Rule 55(a) gives the clerk authority to enter a default
is not a limitation on the power of the court to do
10A Charles Alan Wright et al., Federal Practice
consider the motion and enter default if warranted.
“Rule 55(a) mandates the entry of default so that
‘the adversary process [will not be] halted because of
an essentially unresponsive party.’”
Perez v. Wells
Rule 55(a) allows entry of default
where a defendant has “failed to plead or otherwise
“otherwise defend” broadly, see Liberty Mut. Ins. Co.,
2013 WL 3357167 at *6 (citing cases), in the Eleventh
particulars, and the like, which may prevent default
without presently pleading to the merits.”
short, an entry of default is permitted when a party
responsive motion (e.g., a motion to dismiss) ... .”
Liberty Mut. Ins. Co., 2013 WL 3357167 at *7.
F. App'x 908, 910 (11th Cir. 2011) (upholding entry of
default based not only on defendant’s failure to answer
cooperate in good faith with Plaintiff’”).
As discussed above, while Walker filed an answer to
the original complaint, he has not filed an answer or
any other response to the amended complaint, which was
filed almost two years ago.
Walker was required to
complaint within 14 days of its service.
See Fed. R.
Civ. P. 15(a)(3) (“Unless the court orders otherwise,
3. In Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981), the Eleventh Circuit Court of
Appeals adopted as binding all Fifth Circuit precedent
prior to October 1, 1981.
any required response to an amended pleading must be
original pleading or within 14 days after service of
amended complaint was properly served upon him by mail
in accordance with Federal Rule of Civil Procedure 5;
under that rule, service was complete on the day of
otherwise”); Fed. R. Civ. P. 5(b)(2)(C) (“A paper is
person's last known address--in which event service is
complete upon mailing.”).
While Walker may have never
seen the amended complaint, he is to blame for his
failure to receive it, as he has never provided the
court or plaintiffs with an updated address during the
two and half years this case has been pending.
complaint, which he was required to do long ago, he has
“failed to plead.”
Fed. R. Civ. P. 55(a). See also
Tara Prods., 449 F. App'x at 910 (finding no abuse of
discretion in entry of default where defendant failed
to respond to second amended complaint for six months).
plaintiffs of his change of address; failed to file an
answer to the amended complaint after it was properly
served; and failed to respond to an order of this court
to show cause as to why final judgment should not be
entered against him.
For these reasons, plaintiffs are
entitled to entry of default against Walker.
Accordingly, it is ORDERED that:
(2) Default is entered against defendant Harry James
DONE, this the 7th day of March, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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