Simpson v. Kaya et al

Filing 70

ORDER denying 46 Motion for Default Judgment. Clerk is directed to issue an entry of default against defendant Turan Kaya. Signed by Honorable Timothy D. DeGiusti on 8/8/2012. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

RUSTI LENA SIMPSON,
Plaintiff,
v.
TURAN KAYA and Y & Z
TRANSPORTATION CORPORATION,
Defendants.

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Case No. CIV-10-1093-D

ORDER
Before the Court is Plaintiff’s Motion for Default Judgment [Doc. No. 46]. Despite diligent
efforts, Plaintiff has been unable to obtain personal service on Defendant Turan Kaya, who was
previously served by publication. By her Motion she seeks a judgment by default pursuant to Fed.
R. Civ. P. 55 “in the amount of $100,000 for actual damages.” See Pl.’s Motion, ¶ 9. Defendant
Y&Z Transportation Corporation opposes the Motion, which is fully briefed and at issue.
Plaintiff is correct that Defendant Kaya’s failure to answer or defend this case entitles her
to an entry of default, and the Clerk will be directed to enter Defendant Kaya’s default pursuant to
Fed. R. Civ. P. 55(a). However, Plaintiff has not complied with the Servicemembers Civil Relief
Act, 50 App. U.S.C. § 521, or LCvR55.1 of the Local Civil Rules, which provides: “No application
for a default judgment shall be entertained absent an affidavit in compliance with [the Act].”
In addition, Plaintiff seeks damages for personal injuries, and a hearing would be needed to
determine the amount of her damages, pursuant to Fed. R. Civ. P. 55(b)(2). Because Defendant
Y&Z Transportation Corporation has stipulated to respondeat superior liability for Defendant
Kaya’s conduct if negligence is found, and because a jury trial has been demanded, the amount of
Plaintiff’s damages, if any, will be the subject of a jury trial. Accordingly, the Court agrees with

Defendant Y&Z Transportation Corporation that an entry of judgment against Defendant Kaya at
this time would be premature.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Default Judgment [Doc. No. 46]
is DENIED, but the Clerk is directed to issue an entry of default against Defendant Turan Kaya.
IT IS SO ORDERED this 8th day of August, 2012.

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