Taylor-Womack v. Parrella

Filing 14

MEMORANDUM AND ORDER that the Motion for Default Judgment (Filing No. 12 ) and Amended Motion for Default Judgment (Filing No. 13 ) are construed as motions for clerk's entry of default under Fed. R. Civ. P. 55(a) and are referred to the Clerk of Court. In the event the Clerk of Court enters a default against Defendant: The Clerk of Court is directed to send a copy of this Memorandum and Order as well as the entry of default to the addresses provided by the Plaintiff and listed below: Mic hael Parrella, 6 Union Avenue, North Providence, RI 02904 and Michael Parrella, c/o Coia & Lepore, Ltd.,The Arthur E. Coia Building, 226 South Main Street, Providence, RI 02903. The Defendant must respond to Plaintiff's Motions for Default Judgm ent (Filing No. 12 and 13 ) within fourteen days after the Clerk of Court's entry of default. The Clerk of Court is directed not to terminate the Motions that appear at Filing Nos. 12 and 13, but to set a response deadline of fourteen days from the date of the entry of default. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party and Copies mailed as directed) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LECIA TAYLOR-WOMACK,
Plaintiff,

8:15CV394

vs.
MEMORANDUM AND ORDER
MICHAEL PARRELLA,
Defendant.

This matter is before the Court on the Motion for Default Judgment (Filing No. 12)
and Amended Motion for Default Judgment (Filing No. 13) filed by Plaintiff Lecia TaylorWomack (“Plaintiff”), proceeding pro se. For the reasons stated below, the Motions will
be construed as Motions for Clerk’s Entry of Default.
BACKGROUND
Plaintiff filed her Complaint on November 2, 2015 (Filing No. 1).

Construed

broadly, Plaintiff asserts claims for trademark infringement against Defendant Michael
Parrella for his use of the mark “GG Gangster Gear Apparel Co.” On November 11,
2015, the Court permitted Plaintiff to utilize the United States Marshal to serve process
upon Defendant without prepayment of fees. (Filing No. 6.)
To complete service, Plaintiff provided the United States Marshal with
Defendant’s personal address, as well as the address of Defendant’s attorney, Coia &
Lepore, Ltd., in Providence, Rhode Island (Filing No. 8).

On March 8, 2016, the

Summons was returned executed. (Filing No. 9.) The Process Receipt and Return
shows that the United States Marshal first attempted to serve Defendant by certified
mail at Defendant’s personal address, but the mailing was returned as undeliverable.

(Filing No. 9 at ECF 3.) The United States Marshal then attempted service by certified
mail at the alternative address. (Id.)

The Summons was returned executed based

upon the signed certified mail receipt from service at the alternative address. (Id. at
ECF 7-8.)
Defendant has not answered or otherwise responded to the Complaint in the time
since the Summons was returned executed.

Accordingly, Plaintiff filed the present

Motions for Default Judgment.
DISCUSSION
Under Rule 55, “[w]hen 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).” Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781,
783 (8th Cir.1998); see also Hagen v. Sisseton–Wahpeton Community College, 205
F.3d 1040, 1042 (8th Cir. 2000) (citing Johnson). “Entry of a default under Federal Rule
of Civil Procedure 55(a) is not, as such, entry of a judgment; it merely permits the
plaintiff to move for a default judgment under Rule 55(b)(2), assuming that the default is
not set aside under Rule 55(c).” Inman v. American Home Furniture Placement, Inc.,
120 F.3d 117, 118 n. 2 (8th Cir. 1997). Moreover, “‘a default judgment cannot be
entered until the amount of damages has been ascertained.’” Hagen, 205 F.3d at 1042
(quoting Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 97 (2d Cir. 1993)).
In summary, a default judgment under Rule 55 is a two-step process. First, “the
party seeking a default judgment must have the clerk enter the default by submitting the
required proof that the opposing party has failed to plead or otherwise defend.”
Fraserside IP L.L.C. v. Youngtek Sols. Ltd., 796 F. Supp. 2d 946, 951 (N.D. Iowa 2011)
2

(citing Fed. R. Civ. P. 55(a)). Second, after the clerk has entered a default, “the moving
party may seek entry of judgment on the default under either subdivision (b)(1) or (b)(2)
of the rule.” Id.
The Court cannot rule on Plaintiff’s Motion for Default Judgment because the
Clerk of Court has not entered a default against the Defendant. Therefore, the Court
will construe the Plaintiff’s Motions as motions for entry of default. The Court will refer
the motions for entry of default to the Clerk of Court. In the event that the Clerk of Court
enters a default, the Court will then consider Plaintiff’s Motion for Default Judgment after
Defendant has had an opportunity to respond. Accordingly,
IT IS ORDERED:
1.

The Motion for Default Judgment (Filing No. 12) and Amended Motion for
Default Judgment (Filing No. 13) are construed as motions for clerk’s entry
of default under Fed. R. Civ. P. 55(a) and are referred to the Clerk of
Court;

2.

In the event the Clerk of Court enters a default against Defendant:
a.

The Clerk of Court is directed to send a copy of this Memorandum
and Order as well as the entry of default to the addresses provided
by the Plaintiff and listed below:
Michael Parrella
6 Union Avenue
North Providence, RI 02904
Michael Parrella
c/o Coia & Lepore, Ltd.
The Arthur E. Coia Building
226 South Main Street
Providence, RI 02903
3

b.

The Defendant must respond to Plaintiff’s Motions for Default
Judgment (Filing No. 12 and 13) within fourteen days after the
Clerk of Court’s entry of default; and

c.

The Clerk of Court is directed not to terminate the Motions that
appear at Filing Nos. 12 and 13, but to set a response deadline of
fourteen days from the date of the entry of default.

Dated this 24th day of June, 2016
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

4