Bank of the West v. American Auto Glass Inc. et al

Filing 12

MEMORANDUM AND ORDER denying without prejudice 10 Motion for Default Judgment. Signed by District Judge Daniel D. Crabtree on 9/13/2018. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BANK OF THE WEST,
Plaintiff,
v.

Case No. 18-2324-DDC-GEB

AMERICAN AUTO GLASS INC.,
et al.,
Defendants.
____________________________________

MEMORANDUM AND ORDER
Before the court is plaintiff Bank of the Midwest’s Motion for Default Judgment against
defendant American Auto Glass Inc. Doc. 10. For the reasons explained below, the court denies
plaintiff’s Motion.
Securing a default judgment under Rule 55 of the Federal Rules of Civil Procedure is a
two-step process. See, e.g., Meyers v. Pfizer, Inc., 581 F. App'x 708, 710 (10th Cir. 2014); see
also Christenson Media Grp., Inc. v Lang Indus., Inc., 782 F. Supp. 2d 1213, 1223 (D. Kan.
2011) (“By moving for default judgment first, plaintiff is trying to skip step one and jump to step
two. A plaintiff may not seek default judgment before it has applied for entry of default.”)
(citations omitted). First, the party seeking default must apply to the clerk for a Clerk's Entry of
Default under Federal Rule of Civil Procedure 55(a), which requires the movant to prove, by
affidavit or otherwise, that the opposing party has failed to plead or otherwise defend against
judgment for affirmative relief. Fed. R. Civ. P. 55(a). After the Clerk's Entry of Default is
entered, the plaintiff may then move for an Entry of Default Judgment under Rule 55(b). Id. at
55(b). If plaintiff’s claim is for a sum certain, then plaintiff may request that the clerk enter

judgment against defendant, provided the requisite showings are made. Id. at 55(b)(1). Because
plaintiff has not yet completed step one, the court denies plaintiff's Motion for Default Judgment
under Rule 55(b), but without prejudice to refiling after completing step one.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s Motion for
Default Judgment (Doc. 10) is denied without prejudice.
IT IS SO ORDERED.
Dated this 13th day of September, 2018, at Kansas City, Kansas.

s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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