United Assoc Journey & App, Plumb & Pipe Fit Indus et al v. Bailey et al

Filing 8

ORDER construing plaintiff's 5 MOTION for Default Judgment as a motion for Clerk's entry of default and referring the motion to the Clerk of the Court for consideration of entry of a Clerk's default. Signed by Judge Brian S. Miller on 11/24/08. (bkp) (Additional attachment(s) added on 11/25/2008: # 1 Main Document - Correct; Document number corrected, pursuant to instructions from Chambers.) (thd).

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LOCAL UNION NO. 155 UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA; LOCAL UNION 155, as successor to Local Union 454 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada; MECHANICAL CONTRACTORS ASSOCIATION OF ARKANSAS, INC.; THE LOCAL UNION 155 UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE UNITED STATES AND CANADA HEALTH AND WELFARE TRUST; MATT FAIR, Chairman; JIM RYAN, TONY ELLIS, SHELBY SMITH, MORRIS SMITH, JO KINLEY, in their capacities as members of Local 155 Health and Welfare Trust; and THE GREATER LITTLE ROCK AREA JOINT APPRENTICESHIP COMMITTEE v. CASE NO. 4:08-CV-00170 BSM DEFENDANTS PLAINTIFFS

C. DEAN BAILEY, individually; and AMERICAN HVAC SERVICES, INC. ORDER

Presently before the court is plaintiff's motion for default judgment. The court will treat the motion as a motion for a Clerk's default pursuant to Federal Rule of Civil Procedure 55(a). 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 Community 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, plaintiff will have to seek a default judgment as provided for in Fed. R. Civ. P. 55(b). Accordingly, the court will construe plaintiff's motion for default judgment (Doc. No. 5) 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 24th day of November, 2008.

_________________________________ UNITED STATES DISTRICT JUDGE

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