Moore v. Hoeven et al

Filing 56

AMENDED ORDER DENYING DEFAULT JUDGMENT by Judge Rodney S. Webb.(LH)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA SOUTHEASTERN DIVISION Anthony Moore, Plaintiff, vs. Gov. John Hoeven, et al., Defendants. ) ) ) ) ) ) ) ) )

Case No. 3:08-cv-50

AMENDED ORDER DENYING DEFAULT JUDGMENT On December 19, 2008, the Court issued an order denying Plaintiff's Motion for Default Judgment (doc. #51). In his

motion, Plaintiff claimed he was entitled to default judgment pursuant to Rule 55 of the Federal Rules of Civil Procedure because the defendants did not respond to his Motion for Summary Judgment (doc. #45) within thirty days. Upon further review, the Court notes that, at the time of the default judgment motion, nothing in the record established proof of service of the complaint upon any of the defendants. Waivers of service for some defendants were only filed as of January 5, 2009 (doc. #54, 55). Under Rule 12(a)(1), those

defendants have sixty days from November 14, 2008, the date which the request for waiver was sent, to file an answer to the complaint (doc #44). Accordingly, default judgment is not in The Court

order because service was not established at the time.

renews its DENIAL of Plaintiff's Motion for Default Judgment. Furthermore, Plaintiff has filed a notice of interlocutory

appeal as to the Order Denying Default Judgment (doc. #52). Pursuant to Rule 54(b), the Court's decision was not a final and appealable order adjudicating all the claims and rights of the parties. The Court will therefore construe the notice liberally

as a motion for leave to certify the Default Judgment Order as final for interlocutory appeal under 28 U.S.C. § 1292(b). Section 1292(b) allows a court to certify an order not otherwise appealable for immediate appeal if it finds "that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b).

The Eighth Circuit has held that "[p]ermission to allow interlocutory appeals should thus be granted sparingly and with discrimination." Union County, Iowa v. Piper Jaffray & Co., In this case, the

Inc., 525 F.3d 643, 646 (8th Cir. 2008).

default judgment order does not meet the three-pronged test necessary for certification of immediate appeal under 28 U.S.C. § 1292(b). Therefore, the Court declines to certify the order as The Plaintiff's Motion for Leave to

final for immediate appeal. Certify is DENIED. IT IS SO ORDERED.

Dated this 6th day of January, 2009. ____