Burns v. Buncich et al

Filing 39

OPINION AND ORDER DENYING 31 MOTION for Default Judgment filed by Robert L Burns. Dfts shall have 21 days to file a responsive pleading to the Amended Complaint. Signed by Judge William C Lee on 4/9/2015. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ROBERT BURNS

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Plaintiff
v.
JOHN BUNCICH, et al.
Defendants

Case No. 2:12-CV-0034

OPINION AND ORDER
Pro se plaintiff Robert Burns (“Burns”) filed an Amended Complaint on September 16, 2014
suing two chaplains at the Lake County Jail alleging they denied and interfered with his right to
communal worship as a Jehovah’s Witness. After no responsive pleading was filed by the
Defendants, Burns filed a “Motion for Default Judgment” [DE 3]without first seeking a Clerk’s
entry of default as required by Fed.R.Civ.P. 55.
Rule 55 establishes a two-step process for obtaining a default judgment. First, a party must
successfully request the Clerk of Court to enter the other party's default. Fed.R.Civ.P. 55(a).
Second, after receiving the Clerk's entry of default, the party must submit a motion for default
judgment to the court. Fed.R.Civ.P. 55(b). If the plaintiff's claim is for a sum certain, the clerk will
enter default judgment, but if damages are uncertain or other relief is sought, the plaintiff must apply
to the court for default judgment. Fed.R.Civ.P. 55(b)(2). Failure to comply with step one, negates
the opportunity to prevail on step two without first having the plaintiff comply with the requirement
that a Clerk’s Entry of Default be obtained. Thus, in this case, Burns’ motion for a default judgment
is not proper since he did not first apply and receive a Clerk’s entry of default pursuant to

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Fed.R.Civ.P. 55(a).
That said, it appears that Burns’s Motion for Default Judgment would not be well-taken in
any event. To avoid a default entry under Rule 55(c), defendants here must demonstrate: “(1) good
cause for default (2) quick action to correct it and (3) meritorious defense to the plaintiff's
complaint.” Pretzel & Stouffer v. Imperial Adjusters, 28 F.3d 42, 45 (7th Cir. 1994); U.S. v.
DiMucci, 879 F.2d 1488, 1495 (7th Cir. 1989); Breuer Elec. Mfg. v. Toronado Sys. of Am., 687 F.2d
182, 185 (7th Cir. 1982). “The test is the same for relief under either Rule 55(c) or Rule 60(b), but
is more liberally applied in the Rule 55(c) context.” DiMucci, 879 F.2d at 1495.
Here, in response to Burn’s Motion for a Default Judgment, the Defendants, who now have
appeared by counsel, filed a response wherein they assert good cause for failing to respond to the
Amended Complaint, namely that summons issued to Mac Mcleskey at the Lake County Jail was
returned “unexecuted” by the U.S. Marshal’s Office on October 10, 2014. The notation on the
summons indicated that Mac McClesky was not a jail employee, but rather a volunteer and that no
last known address was available. On that same date, the Marshals attempted to serve Defendant
Chase at the Lake County Jail and, again were told that he is not a jail employee. The Marshals then
mailed service by certified mail to a last known address but there is no indication what address that
was and there is no certified mail receipt acknowledging receipt of the certified mail. Moreover,
no summons or complaint for either defendant was forwarded to the Lake County Attorney’s office
or the Lake County Sheriff’s Office. Thus, the defendants had no notice of the lawsuit until January
12, 2015, when an assistant of the Lake County Attorney’s office discovered the case through a
general computer search of all open cases involving Lake County. After learning of the lawsuit and
that the Motion for Default Judgment had been filed, the Lake County Attorney contacted current

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counsel to retain him as counsel on behalf of the defendants. On that same date, current counsel
appeared on behalf of both defendants and filed an extension of time to respond to the Plaintiff’s
Motion for Default Judgment. These facts demonstrate both sufficient excuse for the default, i.e.
lack of notice, and quick action by the defaulting parties to correct their failure to respond once they
were on notice.
Moreover, the Defendants also assert that they have a meritorious defense to Burns’s claims
in that he failed to exhaust his administrative remedies prior to filing suit. The Seventh Circuit has
often and repeatedly articulated a policy of favoring trial on the merits over default judgment.
Cracco v. Vitran Exp., Inc., 559 F.3d 625 (2009). Given both the “lenient standard” for applying
Rule 55(c) and the “policy of favoring trial on the merits over default judgment,” there is simply no
basis for granting Burns’s motion, even if he had complied with all the procedural steps required by
Rule 55. Accordingly, the Motion for Default Judgment is DENIED.
CONCLUSION
The Motion for Default Judgment is DENIED. [DE 31]. The Defendants shall have 21 days
to file a responsive pleading to the Amended Complaint.

Entered: This 9th day of April, 2015
s/ William C. Lee
United States District Court

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