Mathison v. USA et al

Filing 16

MINUTE ORDER denying 13 Motion for Default Judgment. ORDERED that the Motion 13 is DENIED to the extent it seeks default judgment against Defendant United States. IT IS FURTHER ORDERED that the Motion 13 is DENIED without prejudice to the extent is seeks default judgment as to all other Defendants. By Magistrate Judge Kristen L. Mix on 2/19/2015.(tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03345-RM -KLM
EUGENE H. MATHISON,
Plaintiff,
v.
UNITED STATES OF AMERICA,
CHRISTOPHER WILSON, D.O.,
RONALD CAMACHO, P.A., M.L.P.,
MARK KELLAR, R.N., HEALTH SERVICES ADMIN.,
D. ALLRED, D.O., CLINICAL DIRECTOR,
GEORGE SANTINI, M.D., and
FIVE JOHN/JANE DOES,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Default Judgment
Pursuant to Fed. R. Civil Procedure 55 [#13]1 (the “Motion”). No response has been
filed. In the Motion, Plaintiff asks the Court to enter default judgment against all
Defendants pursuant to Fed. R. Civ. P. 55. Motion [#13] at 1-2.
“[Federal] Rule [of Civil Procedure] 55 mandates a two-step process for a party who
seeks a default judgment in his favor.” Williams v. Smithson, 57 F.3d 1081, at *1 (10th Cir.
June 20, 1995) (unpublished table decision); U.S. Commodity Futures Trading Com’n v.
Trimble, Civil Action No. 11-cv-02887-PAB-KMT, 2013 WL 317576, at *1 (D. Colo. Jan. 28,
2013). First, the party seeking a default judgment must request an entry of default from the
Clerk of the Court under Fed. R. Civ. P. 55(a). Id. After default has been entered by the
Clerk, the party may seek default judgment pursuant to Fed. R. Civ. P. 55(b). Id. Here,
Plaintiff never sought entry of default pursuant to Fed. R. Civ. P. 55(a). The Motion is
subject to denial on this basis alone.

1

“[#13]” is an example of the convention I use to identify the docket number assigned to
a specific paper by the Court’s case management and electronic case filing system (CM/ECF). I
use this convention throughout this Minute Order.

1

However, the Court also notes that pursuant to Fed. R. Civ. P. 55, default judgment
can only be sought against a party that “has failed to plead or otherwise defend” the
lawsuit. Fed. R. Civ. P. 55(a). In this case, Defendant United States timely filed its Motion
to Dismiss for Failure to File a Certificate of Review [#11]. Accordingly, Plaintiff cannot
seek entry of default as to that Defendant. Proof of service as to the remaining Defendants
has not been filed on the docket. Therefore, the Motion is premature as to those
Defendants.
IT IS HEREBY ORDERED that the Motion [#13] is DENIED2 to the extent it seeks
default judgment against Defendant United States.
IT IS FURTHER ORDERED that the Motion [#13] is DENIED without prejudice to
the extent is seeks default judgment as to all other Defendants.
IT IS FURTHER ORDERED that the United States Marshal’s Service shall serve the
Summons and Complaint [#1] on Defendants Wilson, Camacho, Kellar, Allred, and Santini
or, in the alternative, if service is not possible, file proof of inability to serve these
Defendants on the docket on or before March 19, 2015.
Dated: February 19, 2015

2

The Court may rule on a pending motion at any time. D.C.COLO.LCivR 7.1(d).

2