McCoy (ID 76894) v. Aramark Correctional Services et al

Filing 88

MEMORANDUM AND ORDER denying 78 Motion for Default Judgment. Signed by District Judge Carlos Murguia on 1/29/18. Mailed to pro se party DeRon McCoy, Jr. by regular mail. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DERON MCCOY, JR.,
Plaintiff,
v.

Case No. 16-3027

ARAMARK CORRECTIONAL SERVICES,
et al.,
Defendants.

MEMORANDUM & ORDER
This matter comes before the court upon plaintiff DeRon McCoy’s Motion for Default
Judgment (Doc. 78).
Plaintiff moves for default judgment against Defendant Cheryl Allen because he claims that she
failed to timely file an answer or otherwise respond to plaintiff’s Third Amended Complaint (Doc. 64).
Fed. R. Civ. P. 55 governs default judgments. Rule 55 requires parties seeking default judgment to
follow a two-step process. Christenson Media Grp., Inc. v. Lang Indus., Inc., 782 F. Supp. 2d 1213,
1222 (D. Kan. 2011). First, the party seeking default must apply to the clerk for an entry of default
against the opposing party for failure to plead or otherwise defend under Rule 55(a). Only once a
clerk’s entry of default is entered may the party file a motion for default judgment under Rule 55(b).
Plaintiff never filed a motion for clerk’s entry of default.
Instead, plaintiff argues that defendant’s Motion to Dismiss should not count as “otherwise
defend[ing]” against plaintiff’s Third Amended Complaint.

Plaintiff filed his Third Amended

Complaint on June 14, 2017. (Doc. 56.) Defendant Allen was served on July 24, 2017 (Doc. 68) and
timely filed her Motion to Dismiss on August 14, 2017. (Doc. 70.)

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Plaintiff argues that defendant Allen’s Motion to Dismiss is insufficient because it is more like
a motion to join. As defendant Allen suggests, the court finds that whether or not the substance of
defendant’s motion is determined to be a sufficient basis for dismissal, it does sufficiently respond to
plaintiff’s Third Amended Complaint for default to be inappropriate at this time.
IT IS THEREFORE ORDERED that plaintiff’s Motion for Default Judgment (Doc. 78) is
denied.
Dated January 29, 2018, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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