FHL, Inc. et al v. Walker et al

Filing 42

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
YANNON,
Plaintiffs,
v.
HARRY JAMES WALKER,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.
2:13cv555-MHT
(WO)

OPINION AND ORDER
Plaintiffs FHL, Inc. and Christopher Yannon filed
this case against defendant Harry James Walker seeking
injunctive
accounting

relief,
to

a

declaratory
address

judgment,

Walker’s

and

an

alleged

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
default

pursuant

55(a).

For the following reasons, the motion will be

granted.

to

Federal

Rule

of

Civil

Procedure

I. BACKGROUND
Plaintiffs
others

in

filed

August

unsuccessfully

a

of

complaint

2013.

attempting

against

The

to

next

serve

Walker

month,

Walker

by

and

after
other

methods, plaintiffs had Walker personally served with a
summons

and

copy

of

the

complaint.

Service (doc. no. 15).

See

Return

of

Walker then filed a pro se

answer to the complaint, in which he generally denied
all

substantive

allegations,

and

included

his

(presumably then-current) address.
On March 14, 2014, the court issued a memorandum
opinion and order requiring that the plaintiffs file an
amended complaint.
of

this

opinion,

However, sometime before issuance
Walker

apparently

moved

without

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
had

moved

and

not

left

a

forwarding

CM/ECF Docket Entry on August 18, 2014.

address.

See

Almost all of

the court’s correspondence to Walker has been returned

2

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.
On

March

27,

2014,

plaintiffs

filed

an

amended

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.

This

correspondence was likewise returned as undeliverable
with a notation indicating that he moved and had not
left

a

forwarding

address.

See

Christopher Yannon (doc. no. 38-1) at 4.

Affidavit

of

(Indeed, all

of the documents plaintiffs have served Walker by mail
have been returned as undeliverable.

See id.)

Walker

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.
3

Yannon hired a private investigator to find Walker, but
the

private

investigator

did

not

succeed.

See

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.

(dph)”).

This court

then construed the plaintiffs’ request as a motion for
entry
Walker

of
to

granted.

default
show

and

cause

default
why

the

judgment
motion

See Order (doc. no. 41).

and

should

not

be

The time to respond

has come and gone, with no response from Walker.

4

ordered

II. ANALYSIS
Federal

Rule

of

Civil

Procedure

55(a)

provides:

“When a party against whom a judgment for affirmative
relief

is

defend,

sought

and

that

has

failed

failure

to

is

plead

shown

by

or

otherwise

affidavit

or

otherwise, the clerk must enter the party's default.”2
The
question

clerk

declined

arises

enter default.

as

to

to

enter

whether

the

default,
court

so

the

itself

may

“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
that

a

Liberty

court
Mut.

also
Ins.

may
Co.

enter
v.

a

Fleet

party's
Force,

default.”
Inc.,

No.

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
Procedure.”).
5

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
so.”
and

10A Charles Alan Wright et al., Federal Practice
Procedure

cases).

§

This

2682,
court

at

19

is,

(3d

ed.

therefore,

1998)

(citing

authorized

to

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.’”
Fargo

N.A.,

774

F.3d

(citation omitted).

1329,

1337

Perez v. Wells
(11th

Cir.

2014)

Rule 55(a) allows entry of default

where a defendant has “failed to plead or otherwise
defend.”

While

the

majority

of

courts

interpret

“otherwise defend” broadly, see Liberty Mut. Ins. Co.,
2013 WL 3357167 at *6 (citing cases), in the Eleventh
Circuit
service,

that
or

phrase
motions

refers
to

only

“to

dismiss,

attacks
or

for

on

the

better

particulars, and the like, which may prevent default
without presently pleading to the merits.”

6

Bass v.

Hoagland,

172

F.2d

205,

210

(5th

Cir.

1949).3

“In

short, an entry of default is permitted when a party
fails

to

plead

(e.g.,

by

not

answering)

or

file

a

responsive motion (e.g., a motion to dismiss) ... .”
Liberty Mut. Ins. Co., 2013 WL 3357167 at *7.
Tara

Prods.,

Inc.

v.

Hollywood

Gadgets,

But cf.

Inc.,

449

F. App'x 908, 910 (11th Cir. 2011) (upholding entry of
default based not only on defendant’s failure to answer
amended
respond

complaint,
to

the

but

also

district

due

to

court's

“his

failure

orders

and

to
‘to

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.
file

an

answer

or

other

Walker was required to
response

to

complaint within 14 days of its service.

the

amended

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.
7

any required response to an amended pleading must be
made

within

the

time

remaining

to

respond

to

the

original pleading or within 14 days after service of
the

amended

pleading,

whichever

is

later.”)

The

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
mailing.

See

Fed.

requiring

service

original

R.

Civ.

“a

pleading

of

complaint,

unless

P.

5(a)(1)(B)
filed

the

(rule

after

court

the

orders

otherwise”); Fed. R. Civ. P. 5(b)(2)(C) (“A paper is
served

under

this

rule

by:

...

mailing

it

to

the

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.

Because

Walker

amended

has

not

filed

an

answer

to

the

complaint, which he was required to do long ago, he has
“failed to plead.”

Fed. R. Civ. P. 55(a). See also
8

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).
Walker

moved

and

did

not

inform

the

court

or

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:
(1) Plaintiffs
motion

for

FHL,
entry

Inc.
of

and

Christopher

default

(doc.

no.

Yannon’s
38)

is

granted.
(2) Default is entered against defendant Harry James
Walker.
DONE, this the 7th day of March, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE