AFFILIATED FM INSURANCE COMPANY v. SAQUD ENTERPRISES

Filing 5

MEMORANDUM-OPINION/ORDER denying 4 Motion for Default Judgment. Signed by Judge Dennis M. Cavanaugh on 10/23/13. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

AFFILIATED FM INSURANCE CO. A/S/O
NATURE’S TOURCH FROZEN FOODS, INC.
Plaintiffs,
v.

Cv. No. 2:13cv1814(DMC)

SAQUD ENTERPRISES

M E M O R A N D U M
O P I N I O N &
O R D E R

Defendants.

Cavanaugh, DISTRICT JUDGE:
Plaintiff Affiliated FM Insurance Co. moves for default judgment
against Defendants Saqud Enterprises pursuant to Fed. R. Civ. P. 55. 1

For

the following reasons, Plaintiffs= motion is denied.
I

DISCUSSION
Entry of a default judgment is a two-step process in the district

court. Fed. R. Civ. P. 55.

The entry of a default precedes the entry of

the judgment by default, and can be entered by the Clerk in response to
a relatively informal request, "by affidavit or otherwise," setting forth
that the defendant has been served and has failed to plead or otherwise
defend against the action. Fed. R. Civ. P. 55(a).

1

The Court has jurisdiction pursuant to 28 U.S.C. ' 1332.

Once the default has been entered on the Docket, the party desiring
a default judgment must apply to the Clerk or to the Court in accordance
with the procedures contained in Federal Rule of Civil Procedure 55(b),
Fed. R. Civ. P. 54(b), and Local Rules 7.1 and 58.1.

A judgment by default

for a sum certain can be entered by the Clerk, but where the damages are
discretionary and a request for attorneys' fees has been made, there is
no longer a sum certain and the trial court must consider the default
judgment application.

Thus, the Court must review the application

pursuant to Federal Rule of Civil Procedure 55(b)(2).

This Court has

discretion as to whether or not to grant a judgment by default upon
reviewing a proper application by the party seeking relief. Fed. R. Civ.
P. 55(b)(2).
The application to the Court must contain evidence, by affidavit and
documents, of the following: (1) the entry of a default; (2) the absence
of any appearance by any party to be defaulted; (3) that the defendants
are neither infants nor incompetent; (4) that the defendants have been
validly served with all pleadings, including the request for the default
judgment; (5) the amount of the judgment and how it was calculated; and
(6) an Affidavit of non-military service in compliance with the Soldiers'
and Sailors' Relief Act, 50 U.S.C. App. '501, et seq.; Fed. R. Civ. P. 55(b),
Fed. R. Civ. P. 54(b) and Local Rules 7.1 and 58.1; see Dunbar v. Triangle
Lumber and Supply Co., 816 F.2d 126 (3d Cir. 1987).
Plaintiff has failed to satisfy all six of those requirements.
First, plaintiff failed to request the entry of default, second plaintiff
2

failed to provide this court with a proposed Judgment Order.
II

CONCLUSION
For the foregoing reasons, Plaintiff=s application for default

judgment is denied.
So ordered.

s/DENNIS M. CAVANUAGH
DENNIS M. CAVANAUGH, U.S.D.J.

Dated:

23 October 2013

3