Stafford et al v. Ward

Filing 29

ORDER denying without prejudice to renewal 28 Plaintiff Stafford's Motion for Default Judgment. Signed by Magistrate Judge Sharon L. Ovington on 1-10-18. (mcm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
:
:
:
:
:
:
:
:
:

JOHN STAFFORD, et al.,
Plaintiffs,
vs.
DONNA WARD, et al.,
Defendants.

Case No. 3:16-cv-00125
Magistrate Judge Sharon L. Ovington
(by full consent of the parties)

DECISION AND ENTRY
This case is before the Court upon Plaintiff John Stafford’s Motion for Default
Judgment (Doc. #28). Plaintiff seeks an Order entering Default Judgment under Fed. R.
Civ. P. 55(a) against Merrill Solomon. He explains that Mr. Solomon was added as a
new Defendant in the Amended Complaint. He further explains that Mr. Solomon has
been properly served, has declined to waive service, and has not pled or otherwise timely
responded to the Amended Complaint.
Rule 55 of the Federal Rules of Civil Procedure provides for the entry of default
and judgment by default against a party who fails to plead or otherwise defend as
provided for under the Civil Rules. See O.J. Distrib., Inc. v. Hornell Brewing Co., 340
F.3d 345, 352 (6th Cir. 2003). Although Plaintiff cites Rule 55(a), he asks the Court “for
an order granting default judgment in his favor and against defendant Merrill Solomon.”
(Doc. #28, PageID #405). He thus effectively seeks relief under Rule 55(b), which is
available only after the Clerk of Court enters a party’s default under Rule 55(a). See

Hickman v. Burchett, No. 2:07cv743, 2008 WL 926609, at *1 (S.D. Ohio 2008) (Frost,
D.J.). Plaintiff is not entitled to default judgment against Mr. Solomon at this time
because there has been no entry of default by the Clerk of Court. In other words, Plaintiff
has skipped a step on the road to possibly obtaining a default judgment. He must first file
an application for entry of default by the Clerk of Court under Rule 55(a). See id. (and
cases cited therein).
Accordingly, Plaintiff’s Motion for Default Judgment (Doc. #28) is DENIED
without prejudice to renewal.
January 10, 2018

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

2