SPECTRUM PRODUCE DISTRIBUTING, INC. v. FRESH MARKETING, INC. et al

Filing 24

ORDERED that 21 Motion for Default Judgment is DENIED without prejudice to re-filing as it is procedurally premature. ORDERED that the Clerk shall enter DEFAULT against Defts. Fresh Marketing, Inc., Fresh Marketing Farms, LLC, Ralph Donato and Maria Donato. Signed by Judge Jerome B. Simandle on 12/14/2011. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

SPECTRUM PRODUCE
DISTRIBUTING, INC.,

Civil No. 11-6368 (JBS-KMW)

Plaintiff,
ORDER
v.
FRESH
FRESH
MARIA
RALPH

MARKETING, INC.,
MARKETING FARM, LLC,
DONATO and
DONATO,
Defendants.

Presently before the Court is the Plaintiff's motion for
default judgment against the Defendants Fresh Marketing, Inc.,
Fresh Marketing Farms, LLC, Ralph Donato and Maria Donato
(collectively "the Defendants").

[Docket Item 21.]

Pursuant to

Fed. R. Civ. P. 55, entry of default is a prerequisite to default
judgment.

"[N]o default judgment may be entered under either

Fed. R. Civ. P. 55(b)(1) or (b)(2) unless a default has
previously been entered by the clerk under Fed. R. Civ. P. 55(a).
Thus, the entry of default is an essential predicate to any
default judgment."

De Tore v. Jersey City Public Employees

Union, 511 F. Supp. 171, 178 (D.N.J. 1981).
No default has been entered against the Defendants.
Accordingly, the Plaintiff's motion for default judgment is

premature and the Court will construe this motion as a motion for
entry of default pursuant to Fed. R. Civ. P. 55(a).
The Plaintiff filed its complaint on October 31, 2011, and
served the Defendants with the complaint on November 2, 2011.
The Defendants' answers were due on November 23, 2011, 21 days
after being served with the summons and complaint, pursuant to
Fed. R. Civ. P. 12(a)(1).

Defendants have not answered or

otherwise responded to Plaintiff's complaint.

In addition, the

Court ordered the Defendants to show cause as to why they should
not be preliminarily enjoined and for them to appear before the
Court on November 15, 2011.

[Docket Item 4.]

The Defendants did

not respond to the order to show cause and failed to appear on
November 15, 2011.

Therefore entry of default is warranted

pursuant to Rule 55(a).
WHEREFORE IT IS this

14th

day of December, 2011, hereby

ORDERED that the Plaintiff's motion for default judgment is
DENIED without prejudice to re-filing as it is procedurally
premature.
ORDERED that the Clerk of Court shall enter DEFAULT against
Defendants Fresh Marketing, Inc., Fresh Marketing Farms, LLC,
Ralph Donato and Maria Donato.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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