HUERTAS v. CITIGROUP, INC. et al
Filing
92
MEMORANDUM ORDER Denying without prejudice 85 Motion for Default Judgment; 85 Motion for Summary Judgment; 90 Amended Motion for Default Judgment ; 90 Amended Motion for Summary Judgment; 12 Motion to Dismiss and 19 Motion for Summary Judgment. Signed by Judge Renee Marie Bumb on 2/6/14. (js)
[Docket Nos. 12, 19, 85 & 90]
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
HECTOR HUERTAS,
Plaintiff,
Civil No. 13-2050 (RMB/JS)
v.
MEMORANDUM ORDER
CITIGROUP, INC., et al.,
Defendants.
This matter comes before the Court upon a Motion to Dismiss
by Defendant Citibank [Docket No. 12], and several motions by
Plaintiff, Hector Huertas: a Motion for Summary Judgment [Docket
No. 19], Motion for Default Judgment or for Summary Judgment
[Docket No. 85], and an Amended Motion for Default Judgment or
for Summary Judgment [Docket No. 90].
Plaintiff was granted permission, in part, to file an
Amended Complaint on January 30, 2014 [Docket No. 87].
Plaintiff filed the Amended Complaint (titled “Second Amended
Complaint”) on February 5, 2014 [Docket No. 91].
The filing of
Plaintiff’s Amended Complaint renders both Citibank’s Motion to
Dismiss, [Docket No. 12], and Plaintiff’s opposition to that
motion, entitled a “Motion for Summary Judgment” [Docket No.
19], moot and, as such, both motions shall be denied.
Plaintiff’s remaining motions, the Motion for Default
Judgment or for Summary Judgment [Docket No. 85], and the
Amended Motion for Default Judgment or for Summary Judgment
[Docket No. 90] are almost identical.
These motions request
“default judgment against Citibank, N.A., on Counts 1 and 2 of
original complaint or, alternatively, for summary judgment.”
As
Plaintiff is asking for judgment based on his original
complaint, which has been supplanted by the subsequently filed
Amended Complaint, these motions shall similarly be dismissed as
moot.
Moreover, under Federal Rule of Civil Procedure 55, entry
of default by the clerk of the court is a necessary prerequisite
to default judgment.
Nationwide Mut. Ins. Co. v. Starlight
Ballroom Dance Club, Inc., 175 F. App’x 519, 521 n.1 (3d Cir.
2006).
Because Citibank has appeared in this matter, there has
been no entry of default as required.
Finally, to the extent
Plaintiff requests summary judgment, his motion is premature as
Plaintiff makes several arguments in his motion with respect to
discovery and the deadline for fact discovery does not close
until April 30, 2014 [Docket No. 88].
ACCORDINGLY IT IS HEREBY on this 6th day of February 2014,
ORDERED that Defendant’s Motion to Dismiss [Docket No. 12]
is DENIED without prejudice; and
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IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary
Judgment [Docket No. 19] is DENIED without prejudice; and
IT IS FURTHER ORDERED that Plaintiff’s Motion for Default
Judgment or for Summary Judgment [Docket No. 85] and Amended
Motion for Default Judgment or for Summary Judgment [Docket No.
90] are DENIED without prejudice.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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