Wright v. Klassic Kar Wash, L.L.C. et al
ORDER DENYING Plf's 23 Motion for Default Judgment w/leave to refile in conformity w/the requirements of the SCRA as set out. Signed by Judge Callie V. S. Granade on 11/8/2012. (tot)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
) CIVIL NO. 11-00658-CG-B
ORDER ON PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT
This matter is before the court on the motion of the plaintiff, Chad
Wright (“Wright”) for a default judgment against the defendant, Pete
Holifield (“Holifield”). (Doc. 23).
Federal Rule of Civil Procedure 55 establishes a two-step process for
obtaining a default judgment. First, when a defendant fails to plead or
otherwise defend the lawsuit, the clerk of court is authorized to enter a
clerk's default against the defendant. Fed.R.Civ.P. 55(a). Second, after
receiving the clerk's default, if the plaintiff's claim is not for a sum certain
and the defendant is not an infant or an incompetent person, then the Court
can enter a default judgment against the defendant for not appearing.
Fed.R.Civ.P. 55(b)(2). A default judgment may be entered “against a
defendant who never appears or answers a complaint, for in such
circumstances the case never has been placed at issue.” Solaroll Shade and
Shutter Corp., Inc. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1134 (11th
Cir.1986). While all well-pled allegations of fact are deemed admitted upon
entry of default, before entering a default judgment the Court must ensure
that it has jurisdiction over the claims and that the complaint adequately
states a claim for which relief may be granted. See Nishimatsu Constr. Co. v.
Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). See also GMAC
Commercial Mortgage Corp. v. Maitland Hotel Assocs. Ltd., 218 F.Supp.2d
1355, 1359 (M.D.Fla.2002) (“A default judgment cannot stand on a complaint
that fails to state a claim.”) (citations omitted).
In addition to the requirements set forth in Rule 55, the
Servicemembers Civil Relief Act, 50 U.S.C. app. §§ 501 et seq. (2003)
(amending Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. app. §§
501 et seq. (1940)) (the “SCRA”), imposes one additional burden on a plaintiff
seeking to obtain a default judgment. Pursuant to § 521 of the SCRA, in any
civil action in which a defendant fails to appear:
[T]he court, before entering judgment for the plaintiff,
shall require the plaintiff to file with the court an
affidavit(A) stating whether or not the defendant is in military
service and showing necessary facts to support the
(B) if the plaintiff is unable to determine whether or not
the defendant is in military service, stating that the
plaintiff is unable to determine whether or not the
defendant is in military service.
50 U.S.C. app. § 521(b)(1) (2003).
The Soldiers and Sailors Civil Relief Act (the “SSCRA”) was initially
enacted in 1940 “to prevent default judgments from being entered against
members of the armed services in circumstances where they might be unable
to appear and defend themselves.” United States v. Kaufman, 453 F.2d 306,
308-09 (2d Cir. 1971). In considering its provisions, the Supreme Court has
instructed that the SSCRA, “must be read with an eye friendly to those who
dropped their affairs to answer their country's call.” Le Maistre v. Leffers,
333 U.S. 1, 6 (1948) (citing Boone v. Lightner, 319 U.S. 561, 575 (1943)). In
2003, Congress amended the SSCRA and renamed it the Servicemembers
Civil Relief Act. H.R.Rep. No. 81, 108th Cong. at 32 (2003), reprinted in 2004
U.S.C.C.A.N. 2367, 2377. In doing so, Congress stated that it “has long
recognized that the men and women of our military services should have civil
legal protections so they can ‘devote their entire energy to the defense needs
of the Nation.’ ” Id. As such, the SCRA, like its predecessor, explicitly
requires any court to inquire into the service status of an individual prior to
entering a default judgment. 50 U.S.C. app. at § 521.
In his motion for default judgment, Wright has stated that “[t]o the
best of plaintiff’s information and belief Holifield is not in the military
service.” (Doc. 23 at 2). Wright makes the same assertion in his attached
affidavit, based upon “information and belief.” (Doc. 23-1 at 2-3). This is not
sufficient to comply with the SCRA because Wright failed to offer facts to
support the affidavit. See In re Templehoff, 339 B.R. 49 (Bankr. S.D. N.Y.
2005 (holding that the affidavit of default based "on information and belief”
did not satisfy the requirements of the SCRA because it failed to include the
necessary factual support for the conclusion that the debtor was not on active
duty.). See also
Tara Productions v. Hollywood Gadgets, Inc., 449 Fed. Appx.
908, 911 (11th Cir. 2011) (affidavits based in part on information and belief
held to be insufficient in the default judgment context.).
Accordingly, the plaintiff’s motion for default judgment is hereby
DENIED with leave to refile in conformity with the requirements of the
DONE and ORDERED this 8th day of November 2012.
/s/ Callie V.S. Granade
UNITED STATES DISTRICT JUDGE
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