Trytko v. US Bank Home Mortgage

Filing 22

ORDER DENYING 4 Motion for Default Judgment and DENYING 9 Motion for Default Judgment as premature. Signed by Judge Jon E DeGuilio on 10/30/17. (sct)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
PEGGY A. TRYTKO,
Plaintiff,
v.
U.S. BANK HOME MORTGAGE,
Defendant.

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Case No. 3:17-CV-175 JD

ORDER
Currently before the Court are two outstanding Motions for Default Judgment filed by
Plaintiff Peggy Trytko, one on April 18, 2017 [DE 4], and the other on May 8, 2017.1 [DE 9] For
the reasons stated herein, the Court will deny Ms. Trytko’s Motions as premature.
Ms. Trytko filed her complaint in this case on February 28, 2017. [DE 1] After receiving
no word from the Defendant, she should have first filed a motion for entry of default with the
Clerk of this Court by demonstrating that the opposing party had failed to answer or otherwise
respond to the complaint. Fed. R. Civ. P. 55(a); Hardwick v. Sunbelt Rentals, Inc., Case No. 09cv-1106, 2009 WL 1329117, at **1-2 (C.D. Ill. May 13, 2009) (citing UMG Recordings, Inc. v.
Stewart, 461 F. Supp. 2d 837, 840 (S.D. Ill. 2006)). Once the Clerk has entered default in a case,
the moving party may then seek entry of a default judgment against the defaulting party. Fed. R.
Civ. P. 55(b)(2); UMG Recordings, 461 F. Supp. 2d at 840; see also Will-Burn Recording &
Publ’g Co. v. Universal Music Group Records, Case No. 08-0387, 2009 WL 211082 (S.D. Ala.
Jan. 26, 2009) (collecting published district court decisions which indicate that entry of default
and entry of default judgment are two separate steps that should not be combined into one step).

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The Court remains aware of the outstanding Motions to Dismiss and to Set Aside Default. [DE 16]

As the court noted in Will-Burn, “[t]he point is that a clerk’s entry of default must precede an
application to the district judge for entry of default judgment.” 2009 WL 211082, at *1
(emphasis added) (citing Virgin Records America, Inc. v. Johnson, 441 F. Supp. 2d 963, 965
(N.D. Ind. 2006)).
Here, Ms. Trytko’s Motions for Default Judgment came before she even applied to the
Clerk for entry of default on May 9, 2017. [DE 10] The Clerk then entered default on May 9,
2017 [DE 11] and Ms. Trytko has made no additional motion for default judgment subsequent to
that entry. Therefore, Ms. Trytko misapplied the proper default procedures by filing prematurely
for default judgment.
CONCLUSION
For the reasons stated herein, the Court hereby DENIES Plaintiff’s April 18, 2017 [DE
4], and May 8, 2017 [DE 9] Motions for Default Judgment as premature.
SO ORDERED.
ENTERED: October 30, 2017

/s/ JON E. DEGUILIO
Judge
United States District Court