Traber et al v. Mortgage Electronic Registration Systems, Inc. et al

Filing 59

ORDER denying without prejudice 28 Motion for Default Judgment and 15 Motion for Default Judgment. Signed by Magistrate Judge Dennis Howell on 07/24/12. (Pro se litigant served by US Mail.)(emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:11cv126
LAWRENCE J. TRABER and
ELGE L. TRABER,

)
)
)
Plaintiffs,
)
)
v.
)
)
MORTGAGE ELECTRONIC
)
REGISTRATION SYSTEM, INC., et al. )
)
Defendants.
)
_______________________________
)

ORDER

Pending before the Court are Plaintiffs’ Motions for Default Judgment [# 15
& # 28]. Plaintiffs move for the entry of default judgment against Defendants
Mortgage Electronic Registration Systems, Inc. and Mid Atlantic Financial
Services Inc. for failing to answer or respond to their Complaint within the time
periods set forth in Rule 12 of the Federal Rules of Civil Procedure. Upon
consideration of the record in this case, the Court DENIES without prejudice
Plaintiffs’ motions [# 15 & # 28].
I.

Analysis

As a threshold matter, both motions fail to comply with the requirements of
the Local Rules, which require the filing of a motion and separate brief. LCvR
7.1(C). In addition, both motions for default judgment are premature as the Clerk
has not yet entered default against Defendants. See 10A Charles Alan Wright,
Arthur R. Miller, Mary Kay Kane & Richard L. Marcus, Federal Practice and

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Procedure § 2682 (3d ed. 2007). Moreover, the entry of default against Defendant
Mortgage Electronic Registration Systems, Inc. would be improper as it filed a
Motion to Dismiss pursuant to Rule 12 in lieu of filing an answer. If the Court
denies the pending Motions to Dismiss, then Defendants will then be required to
file and serve an Answer.
Finally, although Defendant Mid Atlantic Financial Services Inc. has not
answered or otherwise responded to the Complaint, Plaintiffs must first file a
motion requesting that the Clerk enter default pursuant to Rule 55(a) prior to
moving for the entry of default judgment. Plaintiffs’ motion must set forth by
affidavit or otherwise that service was perfected on Defendant Mid Atlantic
Financial Services Inc. in a manner allowable under Rule 4 of the Federal Rules of
Civil Procedure. Once Plaintiffs makes this showing and the Clerk enters default
against Defendant Mid Atlantic Financial Services Inc., Plaintiffs may then file a
motion and brief in support demonstrating that the entry of default judgment is
appropriate pursuant to Rule 55(b). Accordingly, the Court DENIES without
prejudice Plaintiffs’ motions.
II.

Conclusion

The Court DENIES without prejudice the Motions for Default Judgment
[# 15 & # 28].

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Signed: July 24, 2012

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