First Chatham Bank v. Evans et al

Filing 10

ORDER dismissing 9 Motion for Default Judgment and entry of default. Plaintiff is directed to file an amended complaint within 14 days from the date of this order. Signed by Judge William T. Moore, Jr on 10/2/15. (wwp)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

OCT -2 l.i5

FIRST CHATHAM BANK,
CL E i
LJ.

Plaintiff,

U5

CASE NO. CV15-026

PM

GREGORY G. EVANS and ASLAN
VENTURES, LLC,
Defendants.
ORDER

Before this Court is Plaintiff's Motion for Entry of
Default and Default Judgment. (Doe. 9.) For the following
reasons, Plaintiff's motion is DISMISSED.
Plaintiff filed a complaint against Defendant on
February 3, 2015. (Doe. 1.) On February 19, 2015, Plaintiff
perfected service on Defendant Aslan Ventures, LLC by
serving its manager, Defendant Gregory G. Evans. (Doe. 7.)
At the same time, Plaintiff personally served Defendant
Evans. (Doe. 8.) After Defendants failed to answer the
complaint, Plaintiff filed the instant motion on March 31,
2015, requesting both an entry of default and the entry of
a default judgment against Defendants. As of the date of

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this order, Defendants have failed to make an appearance in
this case.
"Prior to obtaining a default judgment under
Rule 55(b) (2), there must be an entry of default as
provided by Rule 55(a)." IDA Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure
§ 2682 (3d ed. 1998); see also Meehan v. Snow, 652 F.2d
274, 276 (2d Cir.

1981) .1 The purpose of first requiring an

entry of default is to afford the defendant an opportunity
to have the default set aside, pursuant to Federal Rule of
Civil Procedure 55(c), prior to the entry of a default
judgment. 2 Allowing a party to obtain both the entry of
1

The Second Circuit explained the full procedure for
seeking default and default judgment as follows:
The procedural steps contemplated by the Federal
Rules of Civil Procedure following a defendant's
failure to plead or defend as required by the
Rules begin with the entry of a default by the
clerk upon a plaintiff's request. Then, pursuant
to Rule 55(c), the defendant has an opportunity
to seek to have the default set aside. If that
motion is not made or is unsuccessful, and if no
hearing is needed to ascertain damages, judgment
by default may be entered by the court or, if the
defendant has not appeared, by the clerk.
Finally, Rule 55(c) authorizes a motion to set
aside a default judgment pursuant to Rule 60(b).

Meehan, 652 F.2d at 276 (internal citations omitted)
It is clear why the Federal Rules of Civil Procedure
provide a party with the opportunity to set aside an entry
of default prior to the entry of default judgment. The
standard for obtaining relief from an entry of default is
2

default and default judgment in a single motion would
defeat that purpose. As the entry of default is a necessary
precursor to filing a motion for default judgment,
Plaintiff's motion is not properly before the Court at this
time. Therefore, Plaintiff's motion is DISMISSED.
Before seeking default, Plaintiff should be aware that
there is a more pressing problem with this case. While
reviewing Plaintiff's complaint, the Court discovered that
the jurisdictional allegations contained in the complaint
are insufficient to establish complete diversity between
the parties. The party invoking this Court's diversity
jurisdiction bears the burden of adequately pleading
complete diversity between the parties. See 28 U.S.C.
§ 1332; Ray v. Bird & Son& Asset Realization Co., 519 F.2d
1081, 1082 (5th Cir. 1975) ("The burden of pleading
diversity of citizenship is upon the party invoking federal
jurisdiction, and if jurisdiction is properly challenged,
that party also bears the burden of proof."). For the

much less demanding than obtaining relief from a default
judgment. Compare Fed. R. Civ. P. 55(c) ("The court may set
aside an entry of default for good cause . . . ."), with
id. 60(b) (allowing relief from judgment for, among other
reasons, "mistake, inadvertence, surprise, or excusable
neglect")
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit adopted as
binding precedent all decisions of the former Fifth Circuit
handed down prior to October 1, 1981.

purposes of diversity jurisdiction, a limited liability
company ('LLC") is a citizen of every state in which any of
its members are citizens. Rolling Greens t4HP, L.P. v.
Comcast SCH Holdings LL.C., 374 F.3d 1020, 1021-22 (11th
Cir. 2004) . The Eleventh Circuit Court of Appeals has been
explicit in addressing the proper method to allege
sufficiently the citizenship of an LLC: "a party must list
the citizenships of all the members of the limited
liability company." Id. at 1022.
In this case, Plaintiff's complaint does not include a
list of the individual members, along with their
citizenship, of Defendant Asian Ventures, LLC. Rather, the
complaint simply states that "Plaintiff is a Georgia
Corporation and Defendants are citizens and residents of
the State of Kentucky." (Doc. 1 91 4.) Defendants rely on
these allegations to advance the general conclusion that
this Court has jurisdiction because "the parties to this
action are diverse." (Id.)
However, the general allegation that Defendants are
citizens of Kentucky is insufficient for Defendants to
carry their burden of establishing complete diversity
between the parties. See Ray, 519 F.2d at 1082.
Accordingly, Plaintiff is

DIRECTED

to file an amended

complaint within fourteen days from the date of this order.

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As noted above, the amended complaint must properly allege
diversity in this case by including the names and
citizenships of each member of Defendant Asian Ventures,
LLC, thus allowing the Court to confirm that it possesses
jurisdiction to entertain this case. Plaintiff may

seek to

obtain default and default judgment against Defendants
after curing this jurisdictional defect.
SO ORDERED this ..- day of October 2015.

WILLIAM T. MOO RE , J
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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