Benton v. Wombles et al

Filing 16

ORDER referring 14 Motion for Default Judgment, which the Court construes as a Motion for Clerk's Default, to the Clerk's Office for consideration of entry of a clerk's default. Signed by Judge Brian S. Miller on 5/4/11. (kpr)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
BATESVILLE DIVISION
TERESA BENTON
v.

PLAINTIFF
CASE NO. 1:11cv00014 BSM

NATHERN WOMBLES, et al.

DEFENDANTS
ORDER

Plaintiff Teresa Benton (“Benton”) moves for entry of default judgment. [Doc. No.
14]. For the reasons set forth below, the motion will be treated as a motion for a clerk’s
default pursuant to Federal Rule of Civil Procedure 55(a) and will be referred to the clerk of
court.
Federal Rule of Civil Procedure 55 contemplates a two-step process for the entry of
default judgments. First, pursuant to Rule 55(a), the party seeking a default judgment must
have the clerk enter the default by submitting the required proof that the opposing party has
failed to plead or otherwise defend. Second, pursuant to Rule 55(b), the moving party may
seek entry of judgment on the default under either subdivision (b)(1) or (b)(2) of the rule. See
Dahl v. Kanawha Inv. Holding Co., 161 F.R.D. 673, 683 (N.D. Iowa 1995).
“Entry of default under Rule 55(a) must precede grant of a default judgment under
Rule 55(b).” Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998). See also
Hagen v. Sisseton-Wahpeton Cmty. College, 205 F.3d 1040, 1042 (8th Cir. 2000). In this
case, there has been no entry of default. In the event a clerk’s default is entered, Benton will
have to seek a default judgment as provided for in Rule 55(b).

Accordingly, Benton’s motion for default judgment [Doc. No. 14] will be construed
as a motion for clerk’s entry of default. The motion is referred to the clerk of the court for
consideration of entry of a clerk’s default.
IT IS SO ORDERED this 4th day of May, 2011.

________________________________
UNITED STATES DISTRICT JUDGE

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