Tyson v. Quality Homes of McComb, Inc. et al

Filing 48

ORDER granting 17 Motion for Entry of Default as to Fresh Start Transport, Inc.; granting 18 Motion for Entry of Default as to Quality Homes of McComb, Inc.; denying 17 Motion for Default Judgment as to Fresh Start Transport, Inc.; denying 18 Motion for Default Judgment as to Quality Homes of McComb, Inc. Signed by Honorable David C. Bramlette, III on September 10, 2014. (AA)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
SAMUEL TYSON
VS.

PLAINTIFF
CIVL ACTION NO: 3:13-cv-887-DCB-MTP

QUALITY HOMES OF MCCOMB, INC.
FRESH START TRANSPORT, INC., AND
CAPPAERT MANUFACTURED HOUSING, INC.

DEFENDANTS

ORDER DENYING DEFAULT JUDGMENT
Currently before the Court are Plaintiff Tyson’s Motion for
Default Judgment Against Fresh Start Transport, Inc. [docket entry
17] and Motion for Default Judgment Against Quality Homes of
McComb, Inc. [docket entry 18] pursuant to Federal Rule of Civil
Procedure 55(b)(2). After reviewing the record in this case, the
Court finds that the motions are premature.
Tyson filed suit on June 26, 2013. The summons was issued to
Quality Homes of McComb, Inc., (“Quality Homes”) Fresh Start
Transport, Inc., (“Fresh Start”) and Cappaert Manufactured Housing,
Inc., (“Cappaert”) on September 25, 2013.1 Tyson personally served
process on Robert A. Yawn, the registered agent for both Fresh
Start and Quality Homes, on October 3, 2013, in a Burger King
parking lot in Hammond, Louisiana. Both Fresh Start and Quality
Homes failed to answer the Complaint within the twenty-one (21)
days required by Federal Rule of Civil Procedure 12(a). Tyson filed
these motions on February 5, 2014.
“Securing a default judgment is a three-step procedure
involving the defendants’ default, entry of default, and a default
judgment.” Twist and Shout Music v. Longneck Xpress, N.P., 441 F.
Supp. 2d 782, 783 (E.D. Tex. 2006) (citing New York Life Ins. Co.
V. Brown, 84 F.3d 137, 141 (5th Cir. 1996)). “Before obtaining a
default judgment, a plaintiff must show . . . that the defendant is
in default to obtain the clerk’s entry of default.” Agho v. Bank of
America, N.A., No. 3:12cv617-DPJ-FKB, 2014 WL 1747697, at *1 (S.D.

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Cappaert answered the Complaint on November 4, 2013 and is
not subject to Tyson’s motions.
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Miss. May 1, 2014) (internal quotations omitted). Here, Tyson has
attempted to combine steps two and three and has styled his
motions: “Plaintiff’s Request for Entry of Default and Default
Judgment . . . .” It is only after a defendant’s default has been
entered by the clerk that the “plaintiff may apply for a judgment
based on such default.” Brown, 84 F.3d at 143; see also Agho, 2014
WL 1747697, at *1 (“Here, the Aghos . . . did not seek the clerk’s
entry of default. The motion [for default judgment] would be denied
for this reason alone.”).
Tyson attached to both motions a copy of the summons issued by
the court, the proof of service, and an Affidavit in Support of
Entry of Default. The Court finds that these documents sufficiently
demonstrate the failure of both Quality Homes and Fresh Start to
“plead or otherwise defend” in this case. See Fed. R. Civ. P.
55(a).
THEREFORE, IT IS HEREBY ORDERED that the Plaintiff’s Motion
for Entry of Default against Quality Homes of McComb, Inc., is
GRANTED and the Clerk of Court is ordered to make an entry of
default against Quality Homes.
FURTHER ORDERED that the Plaintiff’s Motion for Entry of
Default against Fresh Start Transport, Inc., is GRANTED and the
Clerk of Court is ordered to make an entry of default against Fresh
Start.
FURTHER ORDERED that the Plaintiff’s Motion for Default
Judgment against Quality Homes of McComb, Inc., is DENIED with
leave to refile after the entry of default is made.
FURTHER ORDERED that the Plaintiff’s Motion for Default
Judgment against Fresh Start Transport, Inc., is DENIED with leave
to refile after the entry of default is made.
SO ORDERED, this the 10th day of September 2014.
/s/ David Bramlette
United States District Judge

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