SANCHEZ v. SUNRISE RESTAURANT, INC et al

Filing 19

ORDER DENYING MOTION FOR DEFAULT JUDGMENT - Plaintiff has not moved for a Clerk's entry of default pursuant to Federal Rule of Civil Procedure 55(a), and his motion for default judgment can be denied on that basis alone. Even if Plaintiff had moved for Clerk's entry of default, however, Rule 55(a) provides that it is appropriate to enter it when a defendant "has failed to plead or otherwise defend...." Defendants' opposition to Plaintiff's motion sufficiently explains their initial failure to answer Plaintiff's Complaint, and they are now represented by counsel and have filed an Answer to Plaintiff's Complaint on the Court's docket. For these reasons, Plaintiff's Motion for Default Judgment is DENIED. (See Order.) Signed by Judge Jane Magnus-Stinson on 2/4/2016. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
FRANCISCO J. SANCHEZ,
Plaintiff,
vs.
SUNRISE RESTAURANT, INC,
SEJADIN AJROSKI,
Defendants.

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No. 2:15-cv-00406-JMS-MJD

ORDER DENYING MOTION FOR DEFAULT JUDGMENT
Presently pending before the Court is Plaintiff Francisco J. Sanchez’s Motion for Default
Judgment. [Filing No. 9.] Plaintiff asks the Court to enter default judgment against Defendants
Sejadin Ajroski and Sunrise Restaurant. [Filing No. 9.] Six days after Plaintiff moved for default
judgment, counsel entered an appearance on behalf of both Defendants.

[Filing No. 10.]

Defendants filed a Response in Opposition to the Motion for Default that same day, explaining
that Mr. Ajroski is from Macedonia and did not realize that Plaintiff’s Complaint was a formal
legal pleading rather than just a letter from Plaintiff’s counsel. [Filing No. 11.] Defendants have
now filed an Answer to Plaintiff’s Complaint on the Court’s docket. [Filing No. 14.] Plaintiff did
not file a reply in support of his Motion for Default Judgment.
Rule 55 of the Federal Rules of Civil Procedure sets forth a two-step process for a party
seeking default judgment. McCarthy v. Fuller, 2009 WL 3617740, at *1 (S.D. Ind. 2009); see also
Lowe v. McGraw-Hill Companies, Inc., 361 F.3d 335, 339 (7th Cir. 2004) (“The Federal Rules of
Civil Procedure make a clear distinction between the entry of default and the entry of a default
judgment.”). First, the plaintiff must obtain an entry of default from the Clerk. Fed. R. Civ. Pro.
55(a). Second, after obtaining that entry, the plaintiff may seek an entry of default judgment. Fed.

R. Civ. Pro. 55(b). The plaintiff “is not permitted to bypass the necessary step of obtaining an
entry of default” before seeking an entry of default judgment. Golub v. United States Secret Serv.,
2009 U.S. Dist. LEXIS 76756, *2-3 (S.D. Ind. 2009).
Plaintiff has not moved for a Clerk’s entry of default pursuant to Federal Rule of Civil
Procedure 55(a), and his motion for default judgment can be denied on that basis alone. Even if
Plaintiff had moved for Clerk’s entry of default, however, Rule 55(a) provides that it is appropriate
to enter it when a defendant “has failed to plead or otherwise defend . . . .” Defendants’ opposition
to Plaintiff’s motion sufficiently explains their initial failure to answer Plaintiff’s Complaint, and
they are now represented by counsel and have filed an Answer to Plaintiff’s Complaint on the
Court’s docket. For these reasons, Plaintiff’s Motion for Default Judgment is DENIED. [Filing
No. 9.]

_______________________________

Date: February 4, 2016

Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Electronic Distribution via CM/ECF:
Robert Peter Kondras, Jr.
HUNT HASSLER KONDRAS & MILLER LLP
[e-mail]
Scott Michael Kyrouac
WILKINSON GOELLER MODESITT WILKINSON & DRUMMY
[e-mail]

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