BMO Harris Bank NA v. Richland Express Inc et al

Filing 5

ORDER denying 4 BMO's motion for default judgment. BMO may refile the motion with an appropriate affidavit or affirmation. Signed by Judge Kristine G. Baker on 10/19/2017. (kdr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
BMO HARRIS BANK N.A.
v.

PLAINTIFF
Case No. 2:17-cv-00149-KGB

RICHLAND EXPRESS, INC.,
and FRED WEATHERLY

DEFENDANTS
ORDER

Before the Court is plaintiff BMO Harris Bank, N.A. (“BMO”)’s request for clerk’s entry
of default pursuant to Rule 55 of the Federal Rules of Civil Procedure (Dkt. No. 4). Rule 55 of
the Federal Rules of Civil Procedure contemplates a two-step process for the entry of default
judgments. Fraserside IP L.L.C. v. Youngtek Solutions Ltd., 796 F. Supp. 2d 946, 951 (N.D. Iowa
2011) (citation and internal quotation marks omitted). First, pursuant to Rule 55(a), the party
seeking a default judgment must have the clerk of court enter the default by submitting the required
proof that the opposing party has failed to plead or otherwise defend. Id. 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. Id. Entry of default under Rule 55(a) must precede a grant of default judgment
under Rule 55(b). Id.
To consider a motion for default under Rule 55(a), the clerk requires an affidavit or
affirmation setting forth proof of service, including the date thereof; a statement that no responsive
pleading has been received within the time limit set by the Federal Rules of Civil Procedure or as
fixed by the Court; and a statement that the defendant against whom default is sought is not in
military service, as required by 50 App. U.S.C. § 521. Because the Court determines that BMO
has failed to submit an affidavit or affirmation addressing these requirements so as to permit the
clerk to consider its motion for default under Rule 55(a), the Court denies without prejudice

BMOS’s motion for default judgment (Dkt. No. 4). BMO may refile the motion with an
appropriate affidavit or affirmation.
It is so ordered, this the 19th day of October 2017.

________________________________
Kristine G. Baker
United States District Judge

2