Lussy v. Lussy et al

Filing 32

ORDER granting 17 Motion for entry of Default. The Clerk of Court is directed to enter Defendant Merna Green's default. Signed by Magistrate Judge Jeremiah C. Lynch on 1/23/2018. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION

RICHARD CHARLES LUSSY,
CV 17-79-BU-DLC-JCL
Plaintiff,
vs.

ORDER

HENRY PAUMIE LUSSY, LAUNA
LYNN ROQUE, JUAHLEE MURIE
BORNFF, MERNA GREEN,
ASSESSORS OFFICE MONTANA
DEPARTMENT OF REVENUE, and
WADE J. DAHOOD, ESQ,
Defendant.

On December 20, 2017, Plaintiff Richard Charles Lussy, appearing pro se,
filed a motion titled “Unopposed Default Motion Affidavit Against Defendant:
Merna Green Assessors Office Montana Department of Revenue by Plaintiff Pro
Se for Final Judgment.” In the motion Lussy asserts Green was served with a
summons and a copy of his amended complaint on November 27, 2017. In support
of the assertion Lussy cites to the “Proof of Service” form signed and dated by the
process server on November 27, 2017. (Doc. 14.)
Based upon the referenced Proof of Service, the Court finds sufficient
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evidence exists to establish that Defendant Merna Green was served no later than
November 27, 2017. Thus, under Fed. R. Civ. P. 12(a)(1)(A)(i), Green had 21
days, or until December 18, 2017, to file her responsive pleading. Green has not
filed a responsive pleading in this action. Consequently, she was in default as of
midnight December 18, 2017 – for purposes of electronic filing. See Fed. R. Civ.
P. 6(a)(4)(A).
Although Lussy moves for a default judgment, his request for a judgment is
premature. To obtain a default judgment, a party must follow a sequential two-step
process under Fed. R. Civ. P. 55. First, a party must request that the Clerk of Court
enter a party’s default under Rule 55(a). Second, after entry of default, a party may
then move for a default judgment under Rule 55(b). Kruska v. Perverted Justice
Foundation, Inc., 2009 WL 3837365, *1 (D. Ariz. 2009) (citing Eitel v. McCool,
782 F.2d 1470, 1471 (9th Cir. 1986)). See also Symantec Corp. v. Global Impact,
Inc., 559 F.3d 922, 923 (9th Cir. 2009) (referring to the two-step process). Entry of
a party’s default under Rule 55(a), therefore, is a prerequisite to obtaining a default
judgment under Rule 55(b). Francis v. J.C. Penney Corporation, Inc. 2009 WL
3761999, *1 (W.D. Wash. 2009).
Based on the foregoing, Lussy cannot obtain a default judgment until after
Green’s default is entered. Therefore, the Court will construe Lussy’s motion as a
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motion for the entry of Green’s default pursuant to Fed. R. Civ. P. 55(a). So
construed, IT IS HEREBY ORDERED that Lussy’s motion is GRANTED, and the
Clerk of Court shall enter Defendant Green’s default.
DATED this 23rd day of January, 2018.

______________________________
Jeremiah C. Lynch
United States Magistrate Judge

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