Watson v. City of Burton, a Michigan municipal corporation et al

Filing 38

ORDER DENYING PLAINTIFF'S 22 Motion to Strike - Signed by Magistrate Judge R. Steven Whalen. (CCie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL CLIFTON WATSON,
Plaintiff,

No. 17-11833

v.

District Judge Arthur J. Tarnow
Magistrate Judge R. Steven Whalen

CITY OF BURTON, ET AL.,
Defendants.
/
ORDER
Before the Court is Plaintiff’s motion to strike Defendants’ answer and for default
judgment [Doc. #22]. Plaintiff asks the Court to strike Defendants’ answer to the original
complaint. However, the Court has since granted leave for Plaintiff to file an amended
complaint, and Defendants have filed an answer to the amended complaint. Therefore,
the motion is moot.
In addition, Plaintiff is not entitled to a default judgment. In order for a Plaintiff to
obtain a judgment by default, he must first request a Clerk’s entry of default pursuant to
Fed.R.Civ.P. 55(a). A default judgment is governed by Rule 55(b)(2). “An entry of
default and a default judgment are distinct concepts which must be treated separately.”
Northland Ins. Co. v. Cailu Title Corp., 204 F.R.D. 327, 330 (W.D.Mich.2000) (quoting
United States v. Topeka Livestock Auction, Inc., 392 F.Supp. 944, 950 (N.D.Ind.1975)).
In Vongrabe v. Sprint PCS, 312 F.Supp.2d 1313, 1318 (S.D.Cal.2004), the court
explained:
“The section of the rule regarding default is dealt with in Rule 55(a), and
the section of the rule regarding judgment is dealt with in Rule 55(b). These
sections have separate headings and procedures that are distinct from one
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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.”
See also Ramada Franchise Sys., Inc., 220 F.R.D. 303, 305 (N.D.Ohio 2004)
(quoting Sys. Indus., Inc. v. Han, 105 F.R.D. 72, 74 (E.D.Penn.1985)) (“Entry of a default
... is a prerequisite to entry of a default judgment under Rule 55(b).”); DeTore v. Local #
245 of the Jersey City Public Employees Union, 511 F.Supp. 171, 176 (D.N.J.1981)
(“However, no default judgment may be entered under either F.R.Civ.P. 55(b)(1) or (b)(2)
unless a default has previously been entered by the clerk under 55(a). Thus, the entry of
default is an essential predicate to any default judgment.”).
In this case, the Clerk has not entered of default under Rule 55(a). Therefore,
Plaintiff is not entitled to a default judgment under Rule 55(b).
Accordingly, Plaintiff’s Motion [Doc. #22] is DENIED.
IT IS SO ORDERED.

s/ R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Dated: October 6, 2017

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record
on October 6, 2017, electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager to the
Honorable R. Steven Whalen

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