Westmoreland v. Stratton et al

Filing 31

MEMORANDUM AND ORDER, The Court ADOPTS the Report in its entirety (Doc. 24 ), OVERRULES Westmoreland's objections (Doc. 25 ), and DENIES without prejudice Westmoreland's motion for default judgment (Doc. 23 ). Signed by Judge J. Phil Gilbert on 1/24/2018. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JEREMY WESTMORELAND,
Plaintiff,
v.

Case No. 17-cv-500-JPG-DGW

MICHAEL STRATTON and JACKSON
COUNTY JAIL,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
24) of Magistrate Judge Donald G. Wilkerson recommending that the Court deny plaintiff Jeremy
Westmoreland’s motion for default judgment without prejudice (Doc. 23). Westmoreland has
objected to the Report (Doc. 25).
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are made.
Id. “If no objection or only partial objection is made, the district court judge reviews those
unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999).
Magistrate Judge Wilkerson found that Westmoreland’s motion for default judgment under
Federal Rule of Civil Procedure 55(b) was premature in light of the fact that he had not yet
obtained entry of default under Rule 55(a), a prerequisite for entry of default judgment.
Magistrate Judge Wilkerson also noted that entry of default was not warranted because there was
no evidence Stratton had been served with process.

Westmoreland objects, arguing that he did not know it was necessary to obtain entry of
default under Rule 55(a) prior to seeking default judgment under Rule 55(b) and that he is not
responsible for delays in service of process.
The Court has reviewed the matter de novo and agrees with Magistrate Judge Wilkerson’s
conclusion for the reasons stated in the Report. Entry of default is necessary before default
judgment can be entered, and Westmoreland has not obtained such an entry. Nor could he now,
as Stratton has appeared in the case within a week of being served and has been given until
February 5, 2018, to answer or otherwise respond to the complaint. It is true that much of the
delay in obtaining service was not Westmoreland’s fault. However, by the same token, most of
the time that has elapsed between the filing of the complaint and Stratton’s response is not
Stratton’s fault. He cannot be expected to respond to a complaint he does not know has been
filed. He is now aware of it and can respond in a timely manner. If he does not, the Court
suggests Westmoreland consult Federal Rule of Civil Procedure 55 and Local Rule 55.1 before
seeking default judgment.
For the foregoing reasons, the Court hereby:


ADOPTS the Report in its entirety (Doc. 24);



OVERRULES Westmoreland’s objections (Doc. 25); and



DENIES without prejudice Westmoreland’s motion for default judgment (Doc. 23).

IT IS SO ORDERED.
DATED: January 24, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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