Wellman v. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives

Filing 8

ORDER denying 7 Motion for Default Judgment. Signed by Magistrate Judge William G. Cobb on 8/25/14. (Copies have been distributed pursuant to the NEF - JC)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6
7
8
9
10
11
12

MICAH K. WELLMAN,

)
)
Plaintiff,
)
)
vs.
)
)
DEPARTMENT OF JUSTICE, BUREAU OF )
ALCOHOL, TOBACCO, FIREARMS AND )
EXPLOSIVES,
)
)
Defendant.
)
______________________________________)

3:14-cv-00348-MMD-WGC
ORDER
re: Doc. # 7

13
14

Before the court is Plaintiff's Motion for Entry of Default Final Judgment. (Doc. # 7).1 Plaintiff

15

states defendant Bureau of Alcohol, Tobacco, Firearm and Explosives was served with the complaint

16

on July 15, 2014, and that "more than thirty days have passed and the defendant has failed to plead or

17

otherwise defend this action, and the plaintiff is entitled to judgment by default against the defendant."\

18

Plaintiff actually has two arguments about his request for entry of a default judgment. One is that

19

an extended period of time has passed subsequent to Plaintiff making a FOIA request to the Defendant

20

(id., at 4-5). Secondly, Plaintiff states more than thirty (30) day has passed since he effected service of

21

the complaint. A return on a summons was previously filed with the court reflecting service on the

22

Defendant on or about July 15, 2014. (Doc. # 6).

23

Plaintiff is confusing the alleged obligation of the Defendant to respond to a FOIA request versus

24

the obligation of the government to appear and defend in this action. In that regard, as was reflected in

25

the summons issued in this matter to the Defendant (Doc. # 2), the United States or one of its agencies

26

has sixty (60) days to respond to the complaint. Therefore, Plaintiff's motion is premature. An entry

27

of a default - which is a precondition to the entry of a default judgment (Devlin v Kalm, 493 Fed. Appx.

28
1

Refers to court's docket number.

1

678, 685-86 (6th Cir. 2012) - is only appropriate if a party fails to plead or to otherwise defend the

2

action. Inasmuch as the time for the government to respond has not yet expired, it would be

3

inappropriate to enter a default. As noted above, absent a default, no default judgment may be entered.

4

Plaintiff's motion (Doc. # 7) is therefore DENIED.

5

IT IS SO ORDERED.

6

DATED: August 25, 2014.

7

_____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2