Carter v. Mulcahy et al

Filing 26

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for default judgment [Doc. #20] is DENIED. IT IS FURTHER ORDERED that plaintiff shall amend by interlineation his complaint within thirty (30) days from the date of this Memorand um and Order, stating whether he is suing the named defendants in their official capacities, individual capacities, or both individual and official capacities, in accordance with the specific instructions set forth above. IT IS FURTHER ORDERED that t he Clerk of Court shall modify the docket to reflect the following proper names of the defendants as identified in their answers to the complaint: Susie Gibbs, Charla Holder, and Dr. Charles Pewitt.( Amended/Supplemental Pleadings due by 2/24/2014.) Signed by District Judge John A. Ross on 1/23/2014. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
LARRY LASHAWN CARTER,
Plaintiff,
v.
CAPT. JAMES MULCAHY, et al.,
Defendants.

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No. 1:13CV159 JAR

MEMORANDUM AND ORDER
Before the Court is plaintiff’s motion for default judgment, presumably
brought pursuant to Fed.R.Civ.P. 55(b)1. Defendants Charla Holder, Susie Gibbs
and Charles Pewitt have filed an answer and a response to plaintiff’s motion.
Because the defendants have filed their answer with the Court and explained
their failure to file their responsive pleading in a timely manner, the Court will
deny plaintiff’s motion for default judgment and allow this case to move forward.2
1

Plaintiff’s motion seeks a “default judgment” from the Court. However, he
appears to have misinterpreted Federal Rule of Civil Procedure 55. Under Rule
55(a), “[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, the clerk must enter the party’s default.” Thus, plaintiff was required to
first file a motion for an entry of default for the Clerk of Court pursuant to Rule
55(a), prior to motioning the Court for a default judgment under Rule 55(b).
2

Default judgments are not favored in the law, United States ex rel. Time
Equip. Rental & Sales, Inc. v. Harre, 983 F.2d 128, 130 (8th Cir. 1993), and their
entry is discretionary. See Taylor, 859 F.2d at 1332. "Even when a defendant is

Additionally, after reviewing the record in this case, the Court will take this
opportunity to instruct plaintiff to amend by interlineation his complaint to provide
the capacity (i.e., official capacity, individual capacity, or both individual and
official capacities) in which he is suing each of the named defendants. See
Alexander v. Hedback, 718 F.3d 762, 766 n.4 (8th Cir. 2013)(to sue a state actor in
his or her individual capacity, "a plaintiff must expressly and unambiguously state
so in the pleadings, otherwise, it will be assumed that the defendant is sued only in
his or her official capacity"). Plaintiff is advised that he must sign the amendment
to the complaint.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for default judgment
[Doc. #20] is DENIED.
IT IS FURTHER ORDERED that plaintiff shall amend by interlineation
his complaint within thirty (30) days from the date of this Memorandum and Order,
stating whether he is suing the named defendants in their official capacities,

technically in default, a plaintiff is not entitled to default judgment as a matter of
right." 10 James Wm. Moore, et al., Moore's Federal Practice § 55.20[2][b] (3d ed.
2007). "The entry of a default judgment should be a ‘rare judicial act.'" Comiskey
v. JFTJ Corp., 989 F.2d 1007, 1009 (8th Cir. 1993) (quoting Edgar v. Slaughter,
548 F.2d 770, 773 (8th Cir. 1977)).
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individual capacities, or both individual and official capacities, in accordance with
the specific instructions set forth above.
IT IS FURTHER ORDERED that the Clerk of Court shall modify the
docket to reflect the following proper names of the defendants as identified in their
answers to the complaint: Susie Gibbs, Charla Holder, and Dr. Charles Pewitt.
Dated this 23rd day of January, 2014.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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