AM/NS Calvert LLC v. PSL Ltd.

Filing 12

Order denying without prejudice 11 Application to Clerk for Entry of Default filed by AM/NS Calvert LLC. Signed by Chief Judge William H. Steele on 2/2/2015. (tgw)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION AM/NS CALVERT LLC, etc., Plaintiff, v. PSL, LTD., Defendant. ) ) ) ) ) CIVIL ACTION 14-0310-WS-B ) ) ) ) ORDER The plaintiff has filed an application for entry of default. (Doc. 11). “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend,” it is subject to entry of default. Fed. R. Civ. P. 55(a). But a defendant is under no obligation to plead or otherwise defend until and unless it is “served with the summons and complaint.” Id. Rule 12(a)(1)(A)(i); accord Securities and Exchange Commission v. Wright, 261 Fed. Appx. 259, 261 (11th Cir. 2008). Thus, “[b]efore a default can be entered, … the party must have been effectively served with process.” 10 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2682 at 14 (3rd ed. 1998). And when service of process is at issue, “it [i]s proper for the court rather than the clerk to consider [the plaintiff’s] request” for entry of default. Sandoval v. Bluegrass Regional Mental Health – Mental Retardation Board, 2000 WL 1257040 at *5 (6th Cir. 2000). The defendant is an Indian corporation with its principal place of business in Mumbai. (Doc. 1, ¶ 3). The plaintiff attempted service pursuant to the Hague Convention. (Doc. 7). This is a relatively complex form of service, and the Court cannot determine from the plaintiff’s one-sentence treatment of the issue, (Doc. 11-1, ¶ 3), that its requirements have been met.1 Accordingly, the application for entry of default, construed as a motion for such relief, is denied without prejudice to the plaintiff’s ability to file a properly supported motion. DONE and ORDERED this 2nd day of February, 2015. s/ WILLIAM H. STEELE CHIEF UNITED STATES DISTRICT JUDGE 1 The plaintiff neither identifies the requirements of service under the Hague Convention nor explains how the documents to which it cites, (Doc. 8), establish that those requirements have been satisfied. 2

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