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

Filing 52

ORDER denying 51 Motion for Default Judgment. Signed by Honorable David C. Bramlette, III on May 16, 2018. (JBR)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
EARL ROSS and MAXCINE ROSS

PLAINTIFFS

V.

CAUSE NO. 5:17-CV-46-DCB-MTP

QUALITY HOMES OF MCCOMB, INC.,
MISS/LOU MOBILE HOME MOVERS, LLC,
PLATINUM HOMES, LLC, and
JOEY HARBIN

DEFENDANTS
ORDER

This cause is before the Court on Earl and Maxcine Ross’s
Motion for Default Judgment [Doc. 51] against Defendant Miss/Lou
Mobile Home Movers, LLC.
A party cannot obtain a default judgment under Federal Rule
of Civil Procedure 55(b) without having first obtained an entry of
default by the Clerk under Federal Rule of Civil Procedure 55(a).1
Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir.
1998); 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure, § 2682 (4th ed.).

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The Clerk shall enter a default “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise.”
FED. R. CIV. P. 55(a).

Because the Rosses have not applied for and obtained an entry
of default by the Clerk, they are not entitled to a default
judgment against Miss/Lou Mobile Home Movers, LLC. See, e.g.,
Ronaldo Designer Jewelry, Inc. v. Prinzo, 5:14-CV-73-DCB-MTP, 2015
U.S. Dist. LEXIS 117743, at *1 (S.D. Miss. Sept. 3, 2015)(denying
motion for default judgment when plaintiff failed to first obtain
an entry of default); Ex rel. Garibaldi v. Orleans Parish Sch.
Bd., No. 96-464, 1997 WL 375666, at *1 (E.D. La. July 2, 1997)
(same).
Accordingly,
IT IS ORDERED that Earl and Maxcine Ross’s Motion for Default
Judgment [Doc. 51] against Miss/Lou Mobile Home Movers, LLC is
DENIED WITHOUT PREJUDICE. The Rosses must apply for and obtain an
entry of default by the Clerk before moving the Court for entry of
a default judgment.
SO ORDERED, this the 16th day of May, 2018.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE

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