Taylor v. Augusta-Richmond County Consolidated Government, Commissioner(s), et.al. et al

Filing 25

ORDER that because default has not been entered in this case, Plaintiff's 21 Motion for Default Judgment is denied. To the extent of Plaintiff's 18 "notice" is a motion for entry of default, none of the named defendants are in default in this action, and as such the Court denies any request to enter default at this time. Signed by Judge J. Randal Hall on 01/29/2015. (jah) Modified on 1/29/2015 (jah).

IN THE UNITED

STATES DISTRICT

COURT

FOR THE

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

WARREN ADAM TAYLOR,

*
*

Plaintiff,

*
*
*

*

AUGUSTA-RICHMOND COUNTY

CV

114-231

*

CONSOLIDATED COMMISSIONERS;

*

MAYOR DAVID S. COPENHAVER; MAYOR
PRO TEM COREY JOHNSON; J. PATRICK

*
*

CLAIBORNE;
TAYLOR,

*
*

and GWENDOLYN B.

*

Defendants.

*

ORDER

Presently

judgment.

before

(Doc.

the

21.)

Court

is

Plaintiff's

motion

for

Federal Rule of Civil Procedure 55 allows a

party to seek default judgment pursuant to a two-step process.
if a defendant

entered may a party seek default judgment.

(N.D.

Circuit

Fla.

First,

fails to plead or otherwise defend the lawsuit, the

clerk is authorized to enter a clerk's default.

Props.

default

Events,

May 4,

2010)

LLC, No.

Only after default is

See Bardfield v. Chisholm

3:09cv232,

2010

WL

2278461,

at

*6

(listing cases for the proposition that a

party may not apply for default judgment without first asking the
clerk to enter default).

Here, Defendant has not specifically moved for default, but did
file a notice entitled "The Plaintiff's Request for the Clerk to Take

Notice of Order or Judgment."

receive default

(Doc. 18.)

Because a plaintiff may not

judgment without the entry of default,

Plaintiff's

motion

for

construing

default

judgment

Plaintiff's

is

notice

as

DENIED

as

a motion

premature.

for

entry

Liberally

of default,

the

Court addresses whether entry of default is proper in this matter.

Three

Defendants

Commissioners,
served

on

service,

Mayor

December

—

Augusta-Richmond

Copenhaver,
22,

2014

and

(docs.

Mayor

County

Consolidated

Tem

—

Pro

8-10) .

Based

Johnson
on

that

these Defendants were to respond by January 12,

they have done

(doc. 14) .

Accordingly,

were

date

2015,

of

which

neither the Augusta-Richmond

County Consolidated Commissioners, Mayor Copenhaver, nor Mayor Pro Tem
Johnson are in default.

The next Defendant,

J. Patrick Claiborne,

service form on December 20,

this Court on January 14,

received the waiver of

2014 and filed his waiver of service with

2015 (doc. 16) .*

Based on this waiver of

service, Defendant Claiborne need not respond until February 18, 2015.

Accordingly, Defendant Claiborne is similarly not in default.
Finally,

Plaintiff

mailed

Gwendolyn

Taylor

a

copy

of

the

complaint and summons, along with a request for waiver of service, on
December 19,

2014

(docs.

12, 23).

In response to Plaintiff's motion

for default judgment, Defendant Taylor includes a copy of a waiver of
service,

which was returned executed to Plaintiff on January 12,

(doc. 23, Exs. 1-2).
service

with

the

answer or other
2015.

1

However,

Court.

2015

Plaintiff did not file this waiver of

Based

on

responsive pleading

the

waiver,

is not

Defendant

due until

Taylor's

February 17,

As such, Defendant Taylor is not in default in this matter.

Federal Rule of

Civil Procedure 4(d)(1)(F)

provides that

a plaintiff

must give a defendant at least 30 days to return the executed waiver of
service.

Based on a review of the record,
to the Court.

First,

Plaintiff has not followed the proper procedure

in seeking entry of default.
future,

he

must

default

is

entered

two things are readily apparent

first

move

should

he

Should Plaintiff wish to do
for

entry

file

a

of

default,

motion

for

Because default has not been entered in this case,

for default judgment

(doc.

21) is DENIED.

and

so in the
only

default

after

judgment.

Plaintiff's motion

To the extent Plaintiff's

"notice" (doc. 18) is a motion for entry of default, none of the named

defendants are in default in this action,2 and as such the Court DENIES
any request to enter default at this time.

ORDER ENTERED at Augusta, Georgia, this °<. />^-day of January,
2015.

HOI

UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

2

Plaintiff's motion for default

judgment appears to argue that because

process began on December 11, 2014, Defendants had only 21 days from that
date to file responsive pleadings.
The Court is unaware of what Plaintiff
means by "process began on 12/11/2014."
Pursuant to Federal Rule of Civil
Procedure 12(a)(1)(A), a defendant must serve an answer within 21 days of

"being served with the summons and complaint[.]"
did not begin to run until Defendants were served.

As such, the 21-day clock