Harrington v. Delta Career Education Corporation, et al

Filing 37

ORDER finding as moot 8 Motion to Compel (Dismiss); denying without prejudice 26 Motion for Default Judgment; adopting Report and Recommendations re 29 Report and Recommendations. The Clerk is DIRECTED to enter default against Defendants De lta Career Education Corporation and The Miami-Jacobs Business College Company, d/b/a Miami-Jacobs Career College, after which time Plaintiff may move for default judgment against them. Signed by Judge Algenon L. Marbley on 6/22/2018. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL HARRINGTON,

:
:
:
:
:
:
:
:
:
:

Plaintiff,
v.
DELTA CAREER EDUCATION
CORPORATION, et. al.,
Defendants.

Case No. 2:17-cv-736
JUDGE ALGENON L. MARBLEY
Magistrate Judge Deavers

ORDER
This matter is before the Court on Plaintiff Michael Harrington’s Motion for Default
Judgment against Defendant Jennifer Michael (ECF No. 26) and on the Magistrate Judge’s April
24, 2018 Report and Recommendation (ECF No. 29). For the reasons set forth below, the Court
DENIES WITHOUT PREJUDICE Plaintiff’s Motion for Default Judgment against Defendant
Jennifer Michael (ECF No. 26) and ADOPTS the Report and Recommendation (ECF No. 29).
I.

BACKGROUND

On August 21, 2017, Mr. Harrington filed a Complaint against Defendants Delta Career
Education Corporation d/b/a Miami-Jacobs Career College (“Delta”), the Miami-Jacobs Business
College Company d/b/a Miami-Jacobs Career College (“Miami-Jacobs”), and Jennifer Michael.
Ms. Michael was duly served a copy of Plaintiff’s Complaint on September 1, 2017. (ECF No.
5). Ms. Michael’s Answer to the Complaint was due on September 22, 2017. (Id.). At the time
of filing this motion, Ms. Michael has not served an Answer to the Complaint nor has she
requested an extension of time to answer or plead. (ECF No. 26). The Magistrate Judge thus
issued an Order to Show Cause, requiring Plaintiff Harrington to show cause as to why the
claims against Ms. Michael should not be dismissed for want of prosecution, unless Mr.

1

Harington applied for an entry of default from the Clerk. (ECF No. 23). In response to the show
cause, Mr. Harrington filed a Motion for Default Judgment with the Court (ECF No. 26) but did
not apply for an entry of default with the Clerk.
Delta and Miami-Jacobs (collectively, the “Miami-Jacobs Defendants”) did respond to
the Complaint by filing a Motion to Compel Mediation and Arbitration and Dismiss (“Motion to
Dismiss”) on September 22, 2017. (ECF No. 8). Subsequently, the Miami-Jacobs Defendants’
counsel withdrew, and the Magistrate Judge advised them that they must obtain counsel. She
further ordered them to obtain a trial attorney to appear at an April 6, 2018 status conference.
(ECF No. 22). The Miami-Jacobs Defendants were warned that failure to appear through
counsel at the status conference would result in the recommendation that default be entered
against them. (Id.). On April 6, 2018, the Magistrate Judge issued an Order to Show Cause,
directing the Miami-Jacobs Defendants to show cause why the Court should not enter default
judgment for knowingly failing to comply with the Court’s Order to obtain counsel or appear at
the status conference as directed. (ECF No. 27). The show cause order was returned as
“refused.” (ECF No. 28). The Magistrate Judge then issued a Report and Recommendation on
April 24, 2018, recommending that the Court direct the Clerk to enter default against the MiamiJacobs Defendants and that, once default is entered, that the Plaintiff be permitted to move for
default judgment. (ECF No. 29). The Miami-Jacobs Defendants acknowledged service of the
Report and Recommendation on April 20, 2018 (ECF No. 31, 32) but have not objected.
II.

LAW & ANALYSIS

A. Default Judgment against Jennifer Michael
Federal Rule of Civil Procedure 55(a) states that when a party “against whom a judgment
for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown

2

by affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). To
obtain a default judgment under Federal Rule of Civil Procedure 55(b), there must first be an
entry of default under 55(a) with the Clerk. See Shepard Claims Serv. Inc. v. William Darrah &
Assoc., 796 F.2d 190, 193 (6th Cir. 1986) (stating “entry of default is . . . the first procedural step
on the road to obtaining a default judgment”). Federal Rule of Civil Procedure 12(a)(1)(A)(i)
states that a defendant “must serve an answer within 21 days after being served with a
complaint.” Fed. R. Civ. P. 12(a).
Mr. Harrington is requesting an entry of default judgment against Ms. Michael for failing
to respond to his Complaint and failing to ask for an extension. The Court agrees that Ms.
Michael failed to serve her Answer or otherwise respond to the Complaint within the allotted
time under Federal Rule of Civil Procedure 12 and thus default may be appropriate. Mr.
Harrington, however, failed to first apply for entry of default with the Clerk, which is a necessary
prerequisite to a Court’s entry of default judgment. The Motion for Default Judgment against
Jennifer Michael (ECF No. 26) is therefore DENIED WITHOUT PREJUDICE. Once Mr.
Harrington applies for default with the Clerk and default is entered, Mr. Harrington may re-file a
Motion for Default Judgment.
B. Report and Recommendation
The Report and Recommendation recommending that this Court direct the Clerk to enter
default against the Miami-Jacobs Defendants was mailed to the Miami-Jacobs Defendants on
April 25, 2018. (ECF No. 29). Miami-Jacobs acknowledged service on April 30, 2018. (ECF
No. 31).

Delta acknowledged service on May 3, 2018 (ECF No. 32).1

1

The Report and

The Court notes that the Report and Recommendation was returned as undeliverable at some of
the Miami-Jacobs Defendants’ addresses, but service was acknowledged at one address for each
Defendant.

3

Recommendation specifically advised the parties that the failure to object results in a waiver of
the right to have the district judge review the Report and Recommendation de novo, and also
operates as a waiver of the right to appeal the decision of the District Court adopting the Report
and Recommendation. (ECF No. 29). The parties have failed to file any objections, and the
deadline for objections (May 8, 2018) has lapsed. The Court therefore ADOPTS the Report and
Recommendation (ECF No. 29) and DIRECTS the Clerk to enter default against Defendants
Delta Career Education Corporation and The Miami-Jacobs Business College Company, d/b/a
Miami-Jacobs Career College. Once default is entered, Plaintiff is permitted to move for default
Judgment. Further, given the Court’s decision to direct the Clerk to enter default, the MiamiJacobs’ Motion to Dismiss (ECF No. 8) is MOOT.
IV.

CONCLUSION

For the reasons set forth above, the Court hereby DENIES WITHOUT PREJUDICE
the Motion for Default Judgment against Jennifer Michael (ECF No. 26). Mr. Harrington is free
to apply for entry of default with the Clerk and then re-file a motion for entry of default
judgment with this Court. The Magistrate Judge’s Report and Recommendation (ECF No. 29) is
hereby ADOPTED and the Clerk is DIRECTED to enter default against Defendants Delta
Career Education Corporation and The Miami-Jacobs Business College Company, d/b/a MiamiJacobs Career College, after which time Plaintiff may move for default judgment against them.
The Motion to Dismiss (ECF No. 8) is hereby MOOT.
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: June 22, 2018

4

_