Burd v. Dr. Kohut
ORDER denying 14 Motion for Entry of Default. Signed by Magistrate Judge John Johnston on 12/19/2016. Mailed to Burd. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
SHANE LOUIS BURD,
Plaintiff Shane Burd filed a Declaration for Entry of Default. (Doc. 14.)
Mr. Burd alleges Defendants did not file a responsive pleading and it has been
more than 70 days since Defendants were served. Rule 55 of the Federal Rules of
Civil Procedure sets forth a two-step process regarding default judgments: (1)
entry of default and (2) entry of default judgment. Neither are appropriate in this
case. Rule 55(a) provides, “[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.”
In this case, the Clerk of Court was directed to send a request for waiver of
service to Defendant on October 4, 2016. (Doc. 4.) Defendant filed a Waiver of
Service on November 2, 2016, (Doc. 7) and timely filed an Answer to the
Complaint on December 5, 2016. (Doc. 8.)
Since Defendant timely answered Mr. Burd’s Complaint, there is no basis
for the entry of default or default judgment.
Accordingly, the Court issues the following:
Mr. Burd’s Declaration for Entry of Default (Doc. 14) is DENIED.
DATED this 19th day of December 2016.
/s/ John Johnston
United States Magistrate Judge
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