U.S. Bank National Association v. Robles et al

Filing 9

ORDER denying without prejudice 8 Defendants' Motion for Entry of Default Judgment Under Rule 55(b)(1). See Order for details. Signed by Magistrate Judge Philip R. Lammens on 12/10/2012. (JLS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
U.S. BANK NATIONAL
ASSOCIATION, as Trustee for CSMC
Mortgage Loan Trust 2007-3
Plaintiff,
v.

Case No: 5:12-CV-566-Oc-10PRL

YVETTE S. ROBLES, ROBERT
ROBLES, UNKNOWN PARTIES,
SILVER SPRING SHORES RESIDENTS
ASSOCIATION, INC., SUNTRUST
BANK, UNKNOWN TENANT 1 and
UNKNOWN TENANT 2
Defendants.
ORDER
Pending before the Court is Defendants’ Motion for Entry of Default Judgment Under
Rule 55(b)(1), filed on November 27, 2012 (Doc. 8), which the Court construes as a motion for
entry of clerk’s default under Fed. R. Civ. P. 55(a).1 Defendants seek entry of default against
Plaintiffs because Plaintiffs have failed to respond to Defendants’ Counterclaim filed on October
9, 2012, as part of Defendants’ Answer. (Doc. 3). At this time, however, the Motion is due to be
denied because Defendants have failed to comply with local and federal rules.
First, Defendants have failed to comply with Local Rule 3.01(g), M.D. Fla., which
requires that “[b]efore filing any motion in a civil case . . . the moving party shall confer with

1

“Obtaining a default judgment is normally a two-step process.” Chen v. Siemens Energy, Inc., 2011 WL 126115,
at *1 (M.D. Fla. Mar. 9, 2011). First, the party moving for default must show “by affidavit or otherwise” that
another party is in default. Id. “That is, upon a showing that a party against whom judgment is sought fails to
‘plead or otherwise defend,’ the Clerk will make an ‘entry of default’ on the docket.” Id. (quoting Fed. R. Civ. P.
55(a)). Second, the “party may seek a ‘judgment by default’ (also referred to as a “default judgment”).” Id. (citing
Fed. R. Civ. P. 55(b)). Here, a review of the docket reflects that the Clerk has not yet entered default against
Plaintiffs, thus Defendants are at step one.

counsel for the oppo
f
osing party . . .” and th motion sh
he
hould reflect that such a conference has
t
occurred and the ou
utcome of th conferenc Althoug there are limited exc
he
ce.
gh
ceptions to L
Local
1(g), there is no exceptio for failing to confer re
s
on
g
motion for de
efault.
Rule 3.01
egarding a m
Second, Defe
endants have failed to comply with Rule 5 of the Federa Rules of Civil
h
f
al
Procedur
res. Rule 5(
(a)(1)(D), Fe R. Civ. P., requires that written motions be served on e
ed.
P
e
every
party. In addition, Rule 5(d) req
n
R
quires that “[
[a]ny paper after the com
mplaint that is required to be
t
served – together with a certificate of serv
w
vice – must be filed wi
ithin a reaso
onable time after
service.” There is “[n]othing in the text of Rule 55 [th excuses the service requiremen for
“
n
f
hat]
s
e
nt
requests for entry of default (as distinguished from moti
d
ions for defa judgmen and Rule 5(a)
ault
nt),
e
on its fac requires such service Capitol Records v. R Carmic
ce
s
e.”
Rita
chael, 508 F Supp. 2d 1079,
F.
n.1 (S.D. Ala. 2007). Here, ther is nothing in the dock that sugge that Def
.
re
ket
ests
fendants serv a
ved
copy of their Motion on Plainti
n
iffs. Indeed Defendant have faile to includ a certifica of
d,
ts
ed
de
ate
service in their Motio which co
n
on,
ould otherwise establish that it was s
served.
Accordingly, since Defen
A
ndants have failed to co
omply with l
local and fed
deral rules, a set
as
forth abo Defenda
ove,
ants’ Motion (Doc. 8) is DENIED w
n
without prejudice.
IT IS SO OR
T
RDERED
DONE and ORDERED in Ocala, Flo
D
O
orida on Dec
cember 10, 2
2012.

urnished to:
Copies fu
Unrepresented Parties
U
Counsel of Record
C
-2-