Caterpillar Financial Services Corporation v. Fast Energy Services LLC et al

Filing 11

ORDER by Magistrate Judge Charles S. Miller, Jr denying #7 Motion for Default Judgment; denying #7 Motion for Attorney Fees (ZE)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Caterpillar Financial Services Corp.,

)
)
Plaintiff,
)
)
ORDER
v.
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)
Fast Energy Services LLC, Chad
)
Johnson,
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)
Case No.: 1:17-cv-192
Defendants.
)
__________________________________________________________________________
The Plaintiff, Caterpillar Financial Services Corp. (“Caterpillar”), initiated this action on
September 18, 2017. (Doc. No. 1). Caterpillar served Defendant Fast Energy Services LLC with
a copy of the summons and complaint on September 29, 2017. (Doc. No. 5). Caterpillar also served
Defendant Chad Johnson with a copy of the summons and complaint on September 29, 2017. (Doc.
No. 6). Under Fed. R. Civ. P. 12(a), (b), the Defendants had twenty-one days from the date of
services to file an answer or otherwise respond. To date, neither Defendant has answered or
otherwise responded, and their time for doing so has lapsed. Caterpillar filed a motion for default
judgment against both Defendants on January 24, 2018. (Doc. No. 7).
Rule 55 of the Federal Rules of Civil Procedure establishes “the basic procedure to be
followed when there is a default in the course of litigation.” City of New York v. Mickalis Pawn
Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011) (original citation omitted). When a party fails to
defend against an action, Rule 55 provides a two-step process for the entry of judgment against that
party. First, the party may move for entry of default, which “formalizes a judicial recognition that
a defendant has, through its failure to defend the action, admitted liability to the plaintiff,” but does
not admit damages. Id.; see Fed. R. Civ. P. 55(a). Next, the party may seek entry of default judgment

that “converts the defendant's admission of liability into a final judgment that terminates the
litigation and awards the plaintiff any relief to which the court decides it is entitled.” Id.; see Fed.
R. Civ. P. 55(b). Accordingly, entry of default is a pre-requisite to entry of default judgment.
The Eighth Circuit Court of Appeals has noted a plaintiff “was wrong to move for a default
judgment” when an entry of default was not secured first. Johnson v. Dayton Elec. Mfg. Co., 140
F.3d 781, 783 (8th Cir. 1998). The record reveals that the Caterpillar’s motion for default judgment
is premature. No entry of default has been entered against either Defendant. As a result, the Court
finds Caterpillar is not entitled to default judgment. If Caterpillar wishes to seek default judgment
from the Court, it must follow the procedure outlined in Rule 55 of the Federal Rules of Civil
Procedure, i.e., first move for the entry of default and have the clerk enter the party’s default per Rule
55(a). Thereafter, it can move for default judgment in accordance with Rule 55(b). The law in the
Eighth Circuit is clear, and the undersigned has seen default judgments set aside due to the failure
to fully comply with the two-step process required under Rule 55.
On the foregoing, the court DENIES the Motion for Default Judgment (Doc. No. 7).
IT IS SO ORDERED.
Dated this 25th day of January, 2018.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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