LUNA v. MASSY et al

Filing 57

ORDER denying 49 Motion for Default Judgment. Luna has not obtained anentry of default, thereby proscribing the entry of default judgment. Order denying 52 Motion for Default Judgment as a timely responsivepleading was filed by these Defendants. Signed by Magistrate Judge Richard A. Lanzillo on 1/3/2019. (dm)

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

MICHAEL LUNA,
Plaintiff
vs.
SHAWN MASSY, ET AL.,
Defendants

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Case No. 1:18-cv-144 (ERIE)

RICHARD A. LANZILLO
UNITED STATES MAGISTRATE JUDGE

ORDER

Plaintiff Michael Luna has filed two motions seeking a default judgment against the
Defendants. ECF No. 49, ECF No. 52. Those motions are hereby DENIED. First, Luna has
failed to follow the Federal Rules of Civil Procedure. To wit, Rule 55 mandates that “[b]efore a
plaintiff can obtain a default judgment pursuant to Rule 55(b), a plaintiff must secure an entry of
default per Rule 55(a).” Allah am v. Nadar, 635 Fed. Appx. 32, 36 (3d Cir. 2015) (citing 10A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §
2682, at 13 (3d ed. 1998)). “Once default is entered against a specific defendant, Rule 55(b)
allows the plaintiff to request that the clerk or the court enter a default judgment against that
defendant, depending on whether the claim is for a sum certain.” Id. Luna has not obtained an
entry of default, thereby proscribing the entry of default judgment. See, e.g., Turner v. Doe,
2018 WL 2278096 at *6 (D. N. J. May 18, 2018).
Luna’s motion for default judgment against Defendants Claypool, Hyrniczak, Massy,
Stevick, Streyle, and Zinram [ECF No. 52] is also DENIED because a timely responsive
pleading was filed by these Defendants. See ECF No. 19 (setting deadline for filing answer or
other responsive pleading for 9/25/2018) and ECF No. 26 (Defendants’ filing of a motion to
dismiss). And, the Court observes that Luna filed an Amended Complaint [ECF No. 29] on

September 27, 2019, to which the Defendants have timely filed a renewed motion to dismiss
[ECF No. 34].
So ordered.

/s/ Richard A. Lanzillo
Richard A. Lanzillo
RICHARD A. LANZILLO
UNITED STATES MAGISTRATE JUDGE
Filed this 3rd day of January, 2018.