Salter v. Aaron et al
MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 10/5/2017 denying 21 Plaintiff's Motion for Default Judgment. cc: Plaintiff, pro se; Counsel (CDR)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
DONALD JOSHUA SALTER
CIVIL ACTION NO. 1:17-CV-P55-GNS
MATT AARON et al.
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon a motion by Plaintiff for a default judgment against
Defendant Jason Warinner (DN 21). For the following reasons, this motion will be denied.
In his motion, Plaintiff asks for the Court “to rule in [his] favor” because Defendant
Warinner has not served Plaintiff with an answer and the time for serving an answer has passed.
Plaintiff cites to Federal Rule Civil of Civil Procedure 12(a)(1)(A) which provides that, in
general, “a Defendant must serve an answer . . . within 21 days after being served with the
summons and complaint.”
In his response, Defendant Warinner states that the record reflects that he was served
with a summons on June 12, 2017 (DN 14), and that he timely filed his answer on June 28, 2017
(DN 16). Defendant Warinner further notes that this answer contained the requisite Certificate
of Service which stated that a copy of it had been served on Plaintiff at Plaintiff’s then current
address of record. Defendant Warinner’s response also includes an affidavit signed by a
paralegal consultant for the Kentucky State Police (KSP) who avers that when “a pleading is
filed via CM/ECF and the Certificate of Service details that a copy of the pleading be mailed to
the party listed in the Certificate,” it is the “normal operating procedure” of the KSP to mail the
pleading to the party listed by regular mail (DN 22-1). The affiant further states that the answer
mailed to Plaintiff has not been returned to KSP as undeliverable. (Id.). Finally, Defendant
Warinner writes that, out of an abundance of caution, he will remail a certified copy of his
answer to Plaintiff at his current address of record. Plaintiff did not file a reply.
In light of the foregoing, the Court finds that Plaintiff’s motion for a default judgment
must be denied for both procedural and substantive reasons. First, to obtain a default judgment,
a plaintiff must first request the Clerk’s entry of default pursuant to Federal Rule of Civil
Procedure Rule 55(a). Rule 55(b) governs default judgment. “An entry of default and a default
judgment are distinct concepts which must be treated separately.” Redd v. Vails, No. 14-14340,
2015 U.S. Dist. LEXIS 37707, at *5 (E.D. Mich. Mar. 25, 2015). “These sections have separate
headings and procedures that are distinct from one another. Thus, a plain reading of Rule
55 demonstrates that entry of default by the clerk is a prerequisite to an entry of default
judgment.” VonGrabe v. Sprint PCS, 312 F. Supp. 2d 1313, 1318 (S.D. Cal. 2004). Stated
[o]btaining a default judgment is a two-step process: first, the party seeking
a default judgment files a motion for entry of default by demonstrating that the
opposing party has failed to answer or otherwise respond to the complaint;
second, once the clerk has entered a default, the moving party may then
seek entry of a default judgment by the Court against the defaulting party.
Barcey v. La Beau, Inc., No. 14-10249, 2015 U.S. Dist. LEXIS 18622, at *4 (E.D. Mich. Feb. 17,
2015). Thus, because no default has been entered by the Clerk in this action, Plaintiff’s motion
for a default judgment must be denied.
However, Plaintiff’s motion must also be denied for substantive reasons. A default
judgment may be entered when “a party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). The record reflects that
Defendant Warriner timely filed his answer. Thus, he has not filed to plead or otherwise defend
in this action.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for a default judgment
(DN 21) is DENIED.
October 5, 2017
Greg N. Stivers, Judge
United States District Court
Plaintiff, pro se
Counsel of Record
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