Smith v. Timothy et al

Filing 7

MEMORANDUM DECISION and ORDER denying without prejudice 3 Motion for Entry of Default. Signed by Judge Ted Stewart on 8/6/2014. (blh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

KRISTI SMITH,

MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFF’S
MOTION FOR DEFAULT JUDGMENT

Plaintiff,
v.
MONICA TIMOTHY, aka MONICA
BARRIGER, VICTOR SIPOS, DANIEL
WOODS, UTAH LITIGATION CENTER,

Case No. 2:14-CV-236 TS

Defendants.

This matter is before the Court on Plaintiff Kristi Smith’s Application for Entry of
Default Against Defendants Monica Timothy, Victor Sipos, Utah Litigation Center, and Daniel
Woods. 1 In her Motion, Plaintiff asserts that Defendants have been properly served and have
failed to appear or otherwise defend within the time allotted by the Federal Rules of Civil
Procedure. On this basis, Plaintiff seeks a default judgment including various forms of
injunctive relief, $700,000.00 in damages, and an award of attorney’s fees and costs.
Federal Rule of Civil Procedure 55(a) provides that “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure
is shown by affidavit or otherwise, the clerk must enter the party’s default.” Then, “If the
plaintiff’s claim is for a sum certain . . . the clerk—on the plaintiff’s request, with an affidavit
showing the amount due—must enter judgment for that amount and costs against a defendant

1

Docket No. 3.
1

who has been defaulted.” 2 However, where, as here, the judgment sought is not for a sum
certain, or for a sum that can be made certain, “the party must apply to the court for a default
judgment.” 3
Plaintiff has applied to the Court for a default judgment under Rule 55(b)(1). However,
Plaintiff has not yet received a default certificate as required by Rule 55(a). Until Plaintiff
receives a default certificate from the Clerk of the Court, the Court cannot reach the merits of
Plaintiff’s Motion for Default Judgment. For this reason, the Court will deny Plaintiff’s Motion
without prejudice. In so doing, the Court does not reach the merits of Plaintiff’s claim of proper
service or entitlement to a default certificate. Rather, it will leave that determination to the Clerk
of Court in the first instance.
Based on the foregoing, it is hereby
ORDERED that Plaintiff’s Application for Entry of Default Against Defendants Monica
Timothy, Victor Sipos, Utah Litigation Center, and Daniel Woods (Docket No. 3) is DENIED
WITHOUT PREJUDICE.
DATED August 6, 2014.
BY THE COURT:

_______________________________
TED STEWART
United States District Judge

2

Fed. R. Civ. P. 55(b)(1).

3

Fed. R. Civ. P. 55(b)(2).
2