DIOGUARDI v. Giroski, LLC et al
Filing
161
ORDER denying without prejudice 154 Plaintiff's Motion for Default Judgment. Signed by Magistrate Judge Jonathan Goodman on 11/7/2014. (tr00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 12‐23354‐CIV‐MARTINEZ/GOODMAN
GIANFRANCO DIOGUARDI,
Plaintiff,
v.
GRISOKI, LLC, et al.,
Defendants.
_______________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR DEFAULT AGAINST
GARNISHEE KVR EQUITY PARTNERS, LLC WITHOUT PREJUDICE
This Cause is before the Court on Plaintiffʹs Motion For Default Against
Garnishee KVR Equity Partners, LLC (the “Motion”). [ECF No. 154]. Upon
consideration of the Motion and the pertinent portions of the record, the Motion is
DENIED without prejudice for the following reasons.
It is unclear to the Court whether the Motion is a motion for default or a motion
for default judgment. Pursuant to Federal Rule of Civil Procedure 55, default judgment
is a two‐step process: first, entry of default by the clerk (Fed. R. Civ. P. 55(a)), and
second, entry of judgment by default (Fed. R. Civ. P. 55(b)). Patino v. El Rey Del Chivito
Corp., No. 23726‐CIV, 2013 WL 5652056, at *1 (S.D. Fla. Oct. 15, 2013) (citing Brantley v.
DEA, No. 2:12–cv–361–FtM–99SPC., 2012 WL 6015591, at *1 (M.D. Fla. Dec. 3, 2012)).
The Motion indicates in its prayer for relief that Plaintiff is pursuing the first step of the
default judgment process: entry of default. [ECF No. 154, p. 2 (“requests this Court to
enter a Default against Garnishee”]. However, the Motion also indicates that relief is
being sought from the Court, not the clerk.1 [Id.]. Matters are further complicated by
Plaintiff selecting “Motion for Default Judgment” as the relief sought in the Court’s
electronic filing system.2
Given that the Motion seeks relief from the Court and that it has been labeled a
Motion for Default Judgment by Plaintiff in the CM/ECF system, the Undersigned will
address the Motion as a motion for default judgment. Because Plaintiff did not obtain
an entry of default from the clerk, the Court cannot grant an entry of default judgment
pursuant to Rule 55(b). Therefore, the Motion is DENIED without prejudice.
DONE AND ORDERED in Chambers, in Miami, Florida, November 7, 2014.
Copies furnished to:
Honorable Jose E. Martinez
All Counsel of Record
1
It is the clerk who “enter[s] a Default” pursuant to Rule 55. The Court is charged
by subsection (b) of Rule 55 with entering default judgment.
2
See the Clerk of Court’s entry for ECF No. 154 on electronic docket sheet.
2
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