USA v. 400 Roper Street, Morganton, North Carolina

Filing 20

ORDER denying without prejudice 19 Motion for Entry of Default Against Roy Nelson Patton, Sr. and Harold Eugene Patton. Signed by District Judge Martin Reidinger on September 15, 2010. (jhg)

U S A v. 400 Roper Street, Morganton, North Carolina

D o c . 20

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA AS H E V IL L E DIVISION C IV IL CASE NO. 1:10cv18

U N ITE D STATES OF AMERICA,

P l a i n t if f , vs . 4 0 0 Roper Street, Morganton, North C a ro lin a , being real property as d e s c rib e d in a deed at Book 431, P a g e 468, of the Registry of Burke C o u n ty, North Carolina, together w ith the residences, and all a p p u rte n a n c e s , improvements, and a tta c h m e n ts thereon, Defendant.

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ORDER

TH IS MATTER is before the Court on the Government's Motion for E n try of Default Against Roy Nelson Patton, Sr. and Harold Eugene Patton. [D o c . 19]. R u le 55(a) of the Federal Rules of Civil Procedure provides that the C le rk of Court must enter a party's default where the party's failure to plead o r otherwise defend "is shown by affidavit or otherwise." Fed. R. Civ. P. 5 5 (a ). This means that the "elements of a default must be shown by

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m e a n s of an affidavit or by other competent proof." 10A Charles Alan W rig h t, Arthur R. Miller and Mary Kay Kane, Federal Practice and P ro c e d u re § 2682 (3d ed. 1998). Having failed to show "by affidavit or o th e rwis e " that Roy Nelson Patton, Sr. and Harold Eugene Patton have b e e n properly served and have failed to plead or otherwise defend this a c tio n , the Government's motion must be denied. Accordingly, IT IS, THEREFORE, ORDERED that the Government's M o tio n for Entry of Default Against Roy Nelson Patton, Sr. and Harold E u g e n e Patton [Doc. 19] is DENIED WITHOUT PREJUDICE. IT IS SO ORDERED. Signed: September 15, 2010

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