Joiner v. Goodwill of Western Missouri and Kansas

Filing 14

ORDER denying 13 motion for default judgment. Signed on 7/16/18 by District Judge Stephen R. Bough. Copy of this order mailed to Janice Louise Joiner, 9720 East 50th Street, Kansas City, MO 64133 and Goodwill of Western Missouri and Eastern Kansas at 1817 Campbell St., Kansas City, MO 64108 (Diefenbach, Tracy)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JANICE LOUISE JOINER,
Plaintiff,
v.
GOODWILL OF WESTERN MISSOURI AND
EASTERN KANSAS,

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Case No. 4:18-cv-00247-SRB

Defendant.
ORDER
Before the Court is pro se Plaintiff Janice Louise Joiner’s Motion to Enter a Judgment by
Default Against the Defendant. (Doc. #13). Plaintiff failed to comply with Federal Rule of Civil
Procedure 55, and the motion is DENIED without prejudice.
I.

Background

Plaintiff initiated this action on March 30, 2018, by filing a motion to proceed in forma
pauperis. The Court granted the motion to proceed in forma pauperis and directed Plaintiff to
file an Amended Complaint. Plaintiff filed the Amended Complaint on April 24, 2018, and on
May 1, 2018, the Court directed the U.S. Marshal to serve process on Defendant. The U.S.
Marshal filed a return of service evidencing service by mail (FedEx) on Defendant on June 12,
2018. On July 5, 2018, Plaintiff filed the present motion asking the Court to “enter[] a judgment
by default against the Defendant.” (Doc. #13, p. 1).
II.

Discussion

Pursuant to Federal Rule of Civil Procedure 55(a), “When 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 a party’s default.” Rule 55(b) provides

how default judgment may be obtained, but only after a clerk’s entry of default. See Johnson v.
Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998) (“When a party ‘has failed to plead or
otherwise defend’ against a pleading listed in Rule 7(a), entry of default under Rule 55(a) must
precede grant of a default judgment under Rule 55(b).”).
Plaintiff did not move for a clerk’s entry of default under Rule 55(a). Plaintiff’s motion
for default judgment under Rule 55(b) is, therefore, procedurally improper. The Court also notes
that the time for Defendant to file an answer or otherwise respond to the Complaint has not
expired given that service was attempted by mail. See Fed. R. Civ. P. 4(h)(1)(A); Mo. Rev. Stat.
§ 506.150.4.
Accordingly, it is ORDERED that pro se Plaintiff Janice Louise Joiner’s Motion to Enter
a Judgment by Default Against the Defendant (Doc. #13) is DENIED without prejudice. The
Clerk of the Court is directed to send a copy of this order by U.S. Mail to Goodwill of Western
Missouri and Eastern Kansas at 1817 Campbell St., Kansas City, MO 64108.
IT IS SO ORDERED.
/s/ Stephen R. Bough
STEPHEN R. BOUGH
UNITED STATES DISTRICT JUDGE
Dated: July 16, 2018

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