Invictus Residential Pooler Trust 1A v. Ziemba et al

Filing 17

MEMORANDUM AND ORDER that Invictus' motion for clerk's entry of default against Fischer (filing 13 ) is granted. The Clerk of the Court is directed to enter Fischer's default. Invictus' motion for clerk's entry of default a gainst Ziemba (filing 14 ) is granted. The Clerk of the Court is directed to enter Ziemba's default. The Magistrate Judge's findings and recommendation (filing 11 ) are terminated as moot. Invictus' objection (filing 16 ) is overruled as moot. Ordered by Chief Judge John M. Gerrard. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
INVICTUS RESIDENTIAL POOLER
TRUST 1A,
4:19-CV-3036
Plaintiff,
vs.

MEMORANDUM AND ORDER

CYNTHIA J. ZIEMBA, et al.,
Defendants.
This case is before the Court on several pending matters relating to the
defendants' alleged defaults. As explained below, the Court will—with some
reluctance—enter default against the named defendants.
BACKGROUND
The plaintiff, Invictus Residential Pooler Trust 1A, initiated this action
on April 19, 2019, filing its complaint for foreclosure of real property against
defendants Cynthia Ziemba (the owner and resident of the property), Delroy
Fischer (resident of the property), and two unknown tenants. Filing 1.
Summons was requested on April 19 and issued on April 22 (the next business
day). Filing 2; filing 3; filing 4; filing 5; filing 8. Ziemba sent a document to the
Court with the heading, "Answer," that was filed on July 1, but that filing
simply asks the recipient for an extension to pay off the loan. Filing 9. It's not
entirely clear whether that request was directed to the Court or Invictus.
But Invictus had not, at that point, filed any returns of service with the
Court. So on August 12, 2019—nearly 4 months after summons was issued—
the Magistrate Judge entered an order to show cause directing Invictus to show
cause why its claims against Fischer and the unknown tenants should not be

dismissed for failure to serve process or for want of prosecution. Filing 10. That
order set a show cause deadline of September 3, 2019. Filing 10.
Invictus didn't file returns of service, ask for additional time, or
otherwise respond to the Magistrate Judge's order. So, on September 16, the
Magistrate Judge filed her findings and recommendation that Invictus' claims
against Fischer and the unknown tenants be dismissed for failure of service or
want of prosecution. Filing 11. Invictus had 14 days to object to the findings
and recommendation. See NECivR 72.2(a).
On September 30—the very last day to object—Invictus filed an objection
to the findings and recommendation. Filing 16. The objection was supported
by filed returns of service on Ziemba (filing 12) and Fischer (filing 12-1). Those
returns, remarkably, indicated that service had been effected on May 30 and
June 5, respectively. Filing 12; filing 12-1. Even more remarkably, Invictus'
"objection" simply points out the returns of service, with no effort to explain or
excuse why Invictus didn't respond to the Magistrate Judge's order. See filing
16. In other words, the Magistrate Judge ordered Invictus to show cause why
its claims shouldn't be dismissed, and Invictus—with returns of service already
in hand—apparently chose to simply ignore the Magistrate Judge's order.
At the same time, Invictus voluntarily dismissed its claims against the
unknown tenants, whom (if they exist) it had been unable to serve. Filing 15.
And Invictus moved for the Clerk of the Court to enter Ziemba's and Fischer's
defaults, pursuant to Fed. R. Civ. P. 55(a). Filing 13; filing 14. Because Ziemba
had sent correspondence that had been filed as an "answer," and because the
Magistrate Judge's findings and recommendation that Invictus' claim against
Fischer be dismissed was still pending, the Clerk of the Court withheld entry
of default at the express instruction of chambers. Now, the Court must sort out
the mess that has been created.

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DISCUSSION
The Court will, nonetheless, grant Invictus' motions for default—which,
in turn, will moot the findings and recommendation and subsequent objection.
Invictus' unexplained disregard for the Magistrate Judge, and preceding delay
in prosecuting this action, have placed an unnecessary burden on the Court.
But that's the fault of counsel, not the client whose claim is actually at issue.
And on the merits of the client's claim, default is warranted.
Fischer's default is obvious. Ziemba's is less so, because she has filed a
document captioned, "Answer." Filing 9. The Court must consider whether the
allegedly defaulting party has filed a responsive answer or other pleading.
Rogovsky Enter., Inc. v. Masterbrand Cabinets, Inc., 88 F. Supp. 3d 1034, 1039
(D. Minn. 2015). But Ziemba's filing is not an "answer" within the meaning of
Fed. R. Civ. P. 7(a)(2). See Update Art, Inc. v. Charnin, 110 F.R.D. 26, 43
(S.D.N.Y. 1986); White v. Smith, 91 F.R.D. 607, 608 (W.D.N.Y. 1981); see also
Astoria Energy II, LLC v. HH Valves Ltd., No. 17-CV-5724, 2018 WL 3912282,
at *2 (E.D.N.Y. July 13, 2018), report and recommendation adopted, 2018 WL
3897925 (E.D.N.Y. Aug. 15, 2018); Metro. Life Ins. Co. v. Scott, No. 1:14-CV3891, 2015 WL 13545166, at *4 (N.D. Ga. Sept. 4, 2015); cf. Royal Petroleum
Corp. v. Smith, 127 F.2d 841, 843 (2d Cir. 1942); Halnat Pub. Co. v. L.A.P.A.,
Inc., 669 F. Supp. 933, 935 (D. Minn. 1987).
In particular, Ziemba's letter does not assert a defense, deny the
plaintiff's claims, or deny liability. See Halnat Pub. Co., 669 F. Supp. at 935;
see also Mesirow v. Duggan, 240 F.2d 751, 756 (8th Cir.), reh'g denied and
opinion modified sub nom. Green v. Duggan, 243 F.2d 109 (8th Cir. 1957); cf.
Stephenson v. El-Batrawi, 524 F.3d 907, 914 (8th Cir. 2008). Accordingly,

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Ziemba has failed to "plead or otherwise defend" within the meaning of Rule
55(a), and entry of default is appropriate.1
CONCLUSION
As explained above, the Court will grant Invictus' motions for entry of
default. But that is only the first step toward foreclosure.
If Invictus wants a default judgment of foreclosure, it will have to file a
motion for default judgment, and give Ziemba and Fischer notice of that
motion. If Ziemba or Fischer have a defense, they may file something with the
Court opposing the motion for default judgment within 14 days of receiving the
motion. Or, they may appear in this case at any time and ask to have their
defaults set aside. But for now, they are in default.
IT IS ORDERED:
1.

Invictus' motion for clerk's entry of default against Fischer
(filing 13) is granted.

2.

The Clerk of the Court is directed to enter Fischer's default.

3.

Invictus' motion for clerk's entry of default against Ziemba
(filing 14) is granted.

4.

1

The Clerk of the Court is directed to enter Ziemba's default.

The Court notes, however, that Ziemba's letter suggests she anticipated being able to pay

off her loan in July. See filing 9. The Court assumes that didn't happen… but will expect
Invictus to prove it to obtain a default judgment, assuming it moves for one.

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5.

The Magistrate Judge's findings and recommendation (filing
11) are terminated as moot.

6.

Invictus' objection (filing 16) is overruled as moot.

Dated this 23rd day of October, 2019.
BY THE COURT:

John M. Gerrard
Chief United States District Judge

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