AM/NS Calvert LLC v. PSL Ltd.
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
AM/NS CALVERT LLC, etc.,
) CIVIL ACTION 14-0310-WS-B
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
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.
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