Anderson v. Local 435 Union et al

Filing 12

MEMORANDUM ORDER - denying 8 MOTION for Default Judgment. Plaintiff is given an additional THIRTY (30) DAYS to effect service upon the proper General Motors party.. Signed by Judge Leonard P. Stark on 9/17/13. (mdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELA WARE

ROLAND C. ANDERSON,

Plaintiff,

v.

Civ. No. 12-1 119-LPS

LOCAL 435 UNION, et aI.,
Defendants.
MEMORANDUM ORDER

At Wilmington this 17th day of September, 2013;

IT IS HEREBY ORDERED that:

1.

Plaintiff Roland C. Anderson ("Plaintiff") filed this employment discrimination

case on September 11,2012. (D.1. 1) He appears pro se and has paid the filing fee. Pending
before the Court is Plaintiff s motion for default judgment against General Motors Corp. ("GM
Corp.), opposed by General Motors LLC ("GM LLC"). (D.1. 8,9) Plaintiff seeks detlmlt
judgment for a sum certain. (D.1. 8)
2.

The proof of service indicates that a summons for General Motors was served

upon attorney Michael Busenkell ("Busenkell") on October 4,2012. (See D.L 7) GM LLC
opposes the motion on the grounds that Busenkell is not authorized to receive service of process
on behalf of GM LLC. It further opposes the motion on the grounds the Plaintiff did not effect
service upon the proper party. GM LLC explains that it appears Plaintiff intended to name as a
defendant GM Corp., which is a distinct and different entity from GM LLC. Finally, GM LLC

indicates that GM Corp. is currently in bankruptcy and is now doing business as Motors
Liquidation Company. Plaintiff did not reply to the opposition.
3.

Entry of default jUdgment is a two-step process. See Fed. R. Civ. P. 55(a), (b). A

party seeking to obtain a default judgment must first request that the clerk of the court "enter ...
the default" of the party that has not answered the pleading or "otherwise defend[ed]," within the
time required by the rules or as extended by court order. See Fed. R. Civ. P. 55(a). Even if
default is properly entered, the entry ofjudgment by default pursuant to Rule 55(b )(2) is within
the discretion of the trial court. See Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984).
Here, there has been no entry of default. Therefore, the motion for default judgment is
premature. Moreover, it appears that Plaintiff did not properly name and/or serve the correct
defendant. See Fed. R. Civ. P. 4(h).
4.

The motion for defimlt judgment (D.I. 8) is DENIED as premature. Plaintiff is

given an additional THIRTY (30) DAYS to effect service upon the proper party General Motors
party.

A TES DISTRICT JUDGE

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