BROOKS-ALBRECHTSEN v. CITY OF INDIANAPOLIS et al

Filing 69

ORDER DENYING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AND REQUEST FOR HEARING - Plaintiff's motion for default judgment is thus premature. This procedural defect additionally prevents the court from issuing a default judgment. For these reasons, Plaintiff is not entitled to a default judgment and his Motion and Request for Hearing (Docket 63) is DENIED. Signed by Judge Tanya Walton Pratt on 3/30/2016. (JLS)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION MARK A. BROOKS-ALBRECHTSEN, ) ) Plaintiff, ) ) v. ) ) CITY OF INDIANAPOLIS, MARION COUNTY, ) POLICE MERIT BOARD, RICHARD HITE, ) MARK A. BROWN, and KATHLEEN L. DEPEW, ) ) Defendants. ) Case No. 1:15-cv-00786-TWP-TAB ORDER DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT AND REQUEST FOR HEARING This matter is before the Court on Plaintiff Mark A. Brooks-Albrechtsen’s Motion for Default Judgment and Request for Hearing. Plaintiff seeks a default judgment on Count IV of his Complaint. For the following reasons, the Motion is DENIED. Obtaining a default judgment in federal court is a two-step process. See Federal Rule of Civil Procedure 55(a)-(b). Step one requires a party to file an application for entry of default by the clerk pursuant to Rule 55(a). If the defendant fails to timely answer or otherwise respond to a Complaint, the plaintiff can request entry of default by the court clerk. Id. If the clerk enters a default, then the plaintiff can move to step two, and ask the Court to grant a default judgment pursuant to Rule 55(b)(2). The entry of a clerks default is a necessary prerequisite for the court to grant a default judgment. See 10 Moore’s Federal Practice §55.10[1], at 55-14 (Matthew Bender 3d ed. 2014). On December 11, 2015 the Magistrate Judge issued an Order granting Defendants an extension of time up to and including January 22, 2016 within which to answer or otherwise respond to Plaintiff’s Second Amended Complaint (Docket 50). In response to the Court’s Order, on January 22, 2016, Defendants timely filed a Motion to Dismiss asserting that Plaintiff has failed to state a claim upon which relief can be granted (Docket 52). The timely filing of the Motion to Dismiss satisfies the “or otherwise respond to Plaintiff’s Second Amended Complaint” requirement, therefore, Defendants are not in default. On February 9, 2016, Plaintiff filed the instant motion. However, Plaintiff did not first request and obtain an entry of default, instead he moved the court for a default judgment. The distinction between the two types of Rule 55 motions and the fact that obtaining a default judgment is a two-step process is more than just semantics. McCarthy v. Fuller, 2009 WL 3617740 (S.D. Ind. October 29, 2009). Plaintiff’s motion for default judgment is thus premature. This procedural defect additionally prevents the court from issuing a default judgment. For these reasons, Plaintiff is not entitled to a default judgment and his Motion and Request for Hearing (Docket 63) is DENIED. SO ORDERED. Date: 3/30/2016 2 DISTRIBUTION: Mark A. Brooks-Albrechtsen 2230 Stafford Road, Suite 115 Plainfield, Indiana 46168 Lynne Denise Hammer OFFICE OF CORPORATION COUNSEL CITY OF INDIANAPOLIS lynne.hammer@indy.gov Pamela G. Schneeman OFFICE OF CORPORATION COUNSEL CITY OF INDIANAPOLIS pamela.schneeman@indy.gov Andrew R. Duncan RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK ard@rucklaw.com Edward J. Merchant RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK ejm@rucklaw.com John F. Kautzman RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK jfk@rucklaw.com 3

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