USA v. Wells et al
Filing
16
MEMORANDUM OPINION & ORDER: (1) Plaintiffs' 15 MOTION for Entry of Default is GRANTED IN PART and DENIED IN PART; (2) judgment shall be entered in favor of Plaintiff and against the Commonwealth of Kentucky, Division of Unemployment Insurance and Department of Revenue, Division of Collections; (3) Clerk shall ENTER DEFAULT as to dfts Brandi M. Wells (a/k/a Brandi Wells, a/k/a Brandy Wells) and Midland Funding, LLC. Signed by Judge Joseph M. Hood on 5/24/2017.(STC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
UNITED STATES OF AMERICA,
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Plaintiff,
v.
BRANDI M. WELLS, et al.,
Defendants.
Civil Case No. 16-cv-486JMH
MEMORANDUM OPINION & ORDER
***
Having considered Plaintiffs’ Motion for Entry of Default
[DE 15], The Court is not persuaded that default is available as
to Defendant Commonwealth of Kentucky, Department of Revenue,
Division
of
Collections.
Federal
Rule
of
Civil
Procedure
provides for entry of default “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or
otherwise defend. . . .”
(emphasis added).
In this instance,
the Commonwealth of Kentucky has filed an answer with respect to
the claim in Paragraph 12 of the Complaint against its Division
of
Unemployment
subject
property.
Insurance,
The
disclaiming
fact
that
it
any
has
interest
not
in
answered
the
with
respect to Paragraph 14 of the Complaint against its Department
of Revenue, Division of Collections, does not amount to default.
Rather,
because
the
Commonwealth
has
failed
to
deny
the
allegations
in
Paragraph
allegations are admitted.
14
of
the
Complaint
[DE
1],
the
See Fed. R. Civ. P. 8(b)(6).
While the Court will deny the entry of default as to the
Commonwealth of Kentucky, the undersigned construes the motion
as to the Commonwealth of Kentucky as one for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c).
In
this regard,
“For purposes of a motion for judgment on
the pleadings, all well-pleaded material
allegations of the pleadings of the opposing
party must be taken as true, and the motion
may be granted only if the moving party is
nevertheless clearly entitled to judgment.”
Southern Ohio Bank v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 479 F.2d 478, 480 (6th
Cir.1973). But we “need not accept as true
legal conclusions or unwarranted factual
inferences.” Mixon v. Ohio, 193 F.3d 389,
400 (6th Cir. 1999). A Rule 12(c) motion “is
granted when no material issue of fact
exists and the party making the motion is
entitled to judgment as a matter of law.”
Paskvan v. City of Cleveland Civil Serv.
Comm'n, 946 F.2d 1233, 1235 (6th Cir. 1991).
JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 566, 581-82 (6th
Cir. 2007).
Here, the Commonwealth of Kentucky has asserted no
interest or claim upon the property subject to foreclosure by
virtue of its Answer to Paragraph 12 of the Complaint or its
admissions of the allegations in Paragraph 14 of the Complaint.
Accordingly, judgment may be entered on the pleadings as to the
Commonwealth of Kentucky.
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Plaintiff’s motion for default as to Defendants Brandi M.
Wells
(a/k/a
Brandi
Wells,
a/k/a
Brandy
Wells)
and
Midland
Funding, LLC, is well taken.
Accordingly, IT IS ORDERED:
(1)
That Plaintiffs’ Motion for Entry of Default [DE 15]
is GRANTED IN PART and DENIED IN PART, as set forth above.
(2)
Default
That, having construed that portion of the Motion for
as
to
the
Commonwealth
of
Kentucky
as
a
Motion
for
Judgment on the Pleadings, judgment shall be entered in favor of
Plaintiff and against the Commonwealth of Kentucky, Division of
Unemployment Insurance and Department of Revenue, Division of
Collections;
(3)
That the Clerk shall ENTER DEFAULT as to Defendants
Brandi M. Wells (a/k/a Brandi Wells, a/k/a Brandy Wells) and
Midland Funding, LLC.
This the 24th day of May, 2017.
3
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