Horton v. Taylor et al

Filing 35

ORDER granting 29 Motion to Withdraw ; denying 30 Motion for Default Judgment; denying 11 Motion for Default Judgment; denying 13 Motion for Default Judgment; denying 15 Motion ; denying 17 Motion to Strike ; denying 21 Motion to Strike ; denying as moot 24 Motion to Quash; denying as moot 26 Motion to Quash Signed by Honorable David C. Bramlette, III on 10/23/2015 (ECW)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
TRAESY LYNN HORTON a.k.a.
TRACY LYNN HORTON

PLAINTIFF

VS.

CIVIL ACTION NO. 5:15-cv-27(DCB)(MTP)

RONNY TAYLOR AND
ENCANA OIL & GAS (USA) INC.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the Court on the following motions filed
by the plaintiff Traesy Lynn Horton (“Horton”):
Motion

for

default

judgment

(docket

entry

11)

against

defendant Ronny Taylor (“Taylor”);
Amended (second) motion for default judgment (docket entry 13)
against defendant Taylor;
Third motion for default judgment (docket entry 15) against
defendant Taylor;
Application for entry of default (docket entry 16) against
defendant Taylor;
Motion

(docket

entry

17)

to

strike

defendant

Taylor’s

opposition (docket entry 12) to plaintiff’s first motion for
default judgment (docket entry 11);
Amended motion (docket entry 21) to strike Taylor’s opposition
(docket entry 12);
Motion (docket entry 24) to quash reissued summons;
Amended motion (docket entry 26) to quash reissued summons;

Motion (docket entry 29) to withdraw motions to quash reissued
summons (docket entries 24 and 26); and
Fourth motion for default judgment (docket entry 30) against
defendant Taylor.
Having carefully considered the motions and the applicable
law, the Court finds as follows:
Obtaining a default judgment involves a two-step process. The
first step involves the application for an entry of default by the
Clerk against a party who fails to “plead or otherwise defend.”
Fed.R.Civ.P. 55(a).

After the entry of default is obtained, the

second step requires a motion for default judgment pursuant to
Fed.R.Civ.P. 55(b).
A party is not, however, required to plead or otherwise defend
until he has been served with process under Fed.R.Civ.P. 4.
Process issued for defendant Taylor on April 13, 2015.

The Return

of Service indicates that it was served April 14, 2015, on Jana
Causey, Comptroller and Deputy Chancery Clerk of Amite County,
Mississippi, not on defendant Taylor.

See defendant Taylor’s

Response in Opposition to Motion for Default Judgment (docket entry
12).

The Court finds that Horton failed to serve defendant Taylor

with process.

Horton’s first three motions for default judgment

(docket entries 11, 13 and 15), as well as his application for
entry of default (docket entry 16), motion to strike Taylor’s
response (docket entry 17), and amended motion to strike Taylor’s
2

response

(docket

entry

21)

must

therefore

be

denied

(the

application for entry of default will be denied without prejudice).
Horton’s motion (docket entry 29) to withdraw his motions to quash
reissued summons will be granted, and the motions to quash (docket
entries 24 and 26) will be denied as moot.
This leaves the plaintiff’s fourth motion for default judgment
(docket entry 30) against defendant Taylor.

Because entry of

default from the clerk of court under Rule 55(a) is a prerequisite
to obtaining a default judgment under rule 55(b), and Horton has
not renewed his application for entry of default, the fourth motion
for default judgment will be denied without prejudice.
Accordingly,
IT IS HEREBY ORDERED that the plaintiff’s motion for default
judgment (docket entry 11) is DENIED;
FURTHER

ORDERED

that

the

plaintiff’s

amended

motion

for

default judgment (docket entry 13) is DENIED;
FURTHER ORDERED that the plaintiff’s third motion for default
judgment (docket entry 15) is DENIED;
FURTHER ORDERED that the plaintiff’s application for entry of
default (docket entry 16) against defendant Taylor is DENIED
WITHOUT PREJUDICE;
FURTHER ORDERED that the plaintiff’s motion (docket entry 17)
to strike defendant Taylor’s opposition to plaintiff’s first motion
for default judgment is DENIED;
3

FURTHER ORDERED that the plaintiff’s amended motion (docket
entry 21) to strike Taylor’s opposition to plaintiff’s first motion
for default judgment is DENIED;
FURTHER ORDERED that the plaintiff’s motion (docket entry 29)
to withdraw his motions to quash is GRANTED;
FURTHER ORDERED that the plaintiff’s motion (docket entry 24)
to quash reissued summons is DENIED AS MOOT;
FURTHER ORDERED that the plaintiff’s amended motion (docket
entry 26) to quash reissued summons is DENIED AS MOOT.
FURTHER ORDERED that the plaintiff’s fourth motion for default
judgment (docket entry 30) against defendant Taylor is DENIED
WITHOUT PREJUDICE.
SO ORDERED, this the 23rd day of October, 2015.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

4