Zurich American Insurance Company v. LCG Logistics, LLC et al

Filing 49

ORDER denying 48 Motion for Entry of Default. See attached document. Signed by Magistrate Judge Philip M. Frazier on 1/1/52013. (ajt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ZURICH AMERICAN INSURANCE
COMPANY,
Plaintiff,
vs.
LCG LOGISTICS, LLC., et al.
Defendants.

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Case No.: 3:12-cv-00635-MJR-PMF

ORDER
FRAZIER, Magistrate Judge:
Before the Court is Cross Claimant LCG Logistics, LLC’s (“LCG”) motion for entry of
default (Doc. 48) against Cross Defendants Silvia Ceja and Universal Carriers, Inc.

LCG

indicates in its motion that “the record … demonstrates that there has been a failure to plead or
otherwise defend as provided by Rules 12, 55(a) of the Federal Rules of Civil Procedure.” See
Doc. 48.
LCG filed a cross claim pursuant to Rule 13(g) of the Federal Rules of Civil Procedure
on June 28, 2012. See Doc. 7. Summons were issued as to Cross Defendants Silvia Ceja and
Universal Carriers, Inc. on August 10, 2012. See Doc. 14. LCG filed a simultaneously filed a
notice of mailing of the cross claim indicating the cross claim was mailed to the Cross
Defendants “via regular U.S. Mail, postage pre-paid, and via Certified Mail, Return Receipt
Requested.” Doc. 15.
LCG has not demonstrated that the Cross Defendants have been put on notice of the
allegations in the (Doc. 7) cross claim. Federal Rule of Civil Procedure 55(a) provides that the
Clerk may enter default when “a party against whom a judgment for affirmative relief is sought

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has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the
clerk must enter the party's default.” FED. R. CIV. P. 55(a). The record does not independently
demonstrate that the Cross Defendants have been properly served with the cross claim. LCG has
not provided the Court with any other type of documentation evidencing that the Cross
Defendants have notice of the allegations in the (Doc. 7) cross claim and have failed to plead or
otherwise defend. In this situation, entry of default is not appropriate. See FED. R. CIV. P. 55(a);
O'Brien v. R.J. O'Brien & Associates, Inc., 998 F.2d 1394, 1398 (7th Cir. 1993) (providing that
the decision to enter default lies within district court's discretion and requiring proof of return of
service on the defendants is appropriate before entering default).
For the forgoing reasons, LCG’s (Doc. 48) motion for entry of default is denied.
SO ORDERED.
DATED: January 15, 2013.

s/ Philip M. Frazier
PHILIP M. FRAZIER
UNITED STATES MAGISTRATE JUDGE

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