Driver v. Fabish et al

Filing 64

ORDER denying 58 Motion for Entry of Default. Signed by Keith Throckmorton, Clerk of Court on 7/31/2014. (xc:Pro se party by regular and certified mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (ds)

De’Mario Driver,
Plaintiff,
v.
Lt. Frank Fabish, et al.,
Defendants

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
)
) Case No. 3:13-cv-1087
)
) Judge Trauger
) Magistrate Judge Bryant
)
)
)
)

DENIAL OF ENTRY OF DEFAULT JUDGMENT
Pending is Plaintiff’s Request for Entry of Default Judgment against Defendant Michael
Ferrish (Docket Entry No. 58). Plaintiff seeks money damages by this request and states in the
request that default has already been entered against Michael Ferrish. Default has not been entered
against this defendant. Accordingly, the Clerk will construe this as a request for entry of default
pursuant to Federal Rule of Civil Procedure (FRCP) 55(a), as no default judgment may be granted
pursuant to FRCP 55(b) until default has been entered pursuant to FRCP 55(a). U.S. v. $22,050.00
U.S. Currency, 2008 WL 4093066 at page 3 (M.D. Tenn. Aug. 26, 2008); Ramada Franchise
Systems, Inc. v. Baroda Enterprises, LLC, 220 F.R.D. 303, 305 (N.D. Ohio 2004).
The request for entry of default, as construed, is denied as Plaintiff’s affidavit of military
service (Docket Entry No. 59) falsely states that “Defendant Michael Ferrish has worked at the Lois
M. Deberry Special Needs Facility since plaintiff was incarcerated in 1/11/2009, 2010”. Plaintiff’s
assertion is contrary to docket entry number 9, which is an unexecuted return of service stating the
Mr. Ferrish was no longer employed at the facility as of the attempted date of delivery in November
of 2013. Plaintiff’s affidavit is thus not adequate to demonstrate Mr. Ferrish’s military status.
Accordingly, default is denied.
s/ Keith Throckmorton
Keith Throckmorton
Clerk of Court