Federal National Mortgage Association v. Pennington et al

Filing 19

ORDER denying 16 WITHOUT PREJUDICE PLAINTIFFS MOTION REQUESTINGENTRY OF DEFAULT AGAINST DEFENDANT CRYSTAL PENNINGTON. Signed by District Judge Gina M. Groh on 3/10/14. (njz)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Plaintiff,
CIVIL ACTION NO: 3:13-CV-164
(JUDGE GROH)

v.
ROBERT LINDEN PENNINGTON,
LOIS ELAINE PENNINGTON,
ROBERT LEE PENNINGTON,
and CRYSTAL PENNINGTON,
Defendants.

ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION REQUESTING
ENTRY OF DEFAULT AGAINST DEFENDANT CRYSTAL PENNINGTON
On this day, the above-styled matter came before this Court for consideration of
the Plaintiff’s Motion Requesting Entry of Default Against Defendant Crystal Pennington
[Doc. 16], filed March 4, 2014. For the reason that follows, the Court DENIES this
motion WITHOUT PREJUDICE.
After a defendant fails to plead or defend, Federal Rule of Civil Procedure 55
provides for a two-step default judgment process. Rodriguez v. Irwin, No. 7:10-CV-102FL, 2011 WL 737316, at *5 (E.D.N.C. Feb. 23, 2011); see also Meehan v. Snow, 652
F.2d 274, 276 (2d Cir. 1981). First, under Rule 55(a), “the clerk must enter the party’s
default” upon the plaintiff’s request. Meehan, 652 F.2d at 276; see also Hayhurst v.
Liberty Int’l Underwriters, Inc., No. 5:08CV107, 2009 U.S. Dist. LEXIS 5347, at *2 (N.D.
W. Va. Jan. 26, 2009) (“To obtain a default judgment, a party must first seek an entry of

default under Federal Rule of Civil Procedure 55(a).” (emphasis added)). Only after the
clerk enters a default may the plaintiff seek a default judgment under Rule 55(b)(1) or
*5 If the defendant
(2). FED. R. Civ. P. 55(b); see also Rodriguez, 2011 WL 737316, at
has failed to appear and “the plaintiff’s claim is for a sum certain or a sum that can be
made certain by computation,” the plaintiff can request a default judgment from the
clerk under Rule 55(b)(1). FED. R. Civ. P. 55(b)(1); see also Rodriguez, 2011 WL
737316, at *5 If that is not the case, “the party must apply to the court for a default
judgment.” FED. R. Civ. P. 55(b)(2).
Here, the Plaintiff did not apply to the clerk for an entry of default under Rule
55(a) before filing the instant motion for default judgment. Instead, the Plaintiff filed a
motion with the Court seeking an order directing the Clerk to enter default. Because
compliance with Rule 55(a) is a prerequisite for an entry of judgment under Rule
55(b)(1) or (2), this motion is “not on the proper procedural footing.”

Dahi v.

Kanawha mv. Holding Co., 161 F.R.D. 673, 683 (N.D. Iowa 1995); see also Christenson
Media Group, Inc. v. Lang lndus.. Inc., 782 F. Supp. 2d 1213, 1222 (D. Kan. 2011)
(stating that “Fed. R. Civ. P. 55 contemplates a two-step process in which a plaintiff
must first apply to the clerk for entry of default under subsection (a)”); L & M
Companies, Inc. v. Biggers III Produce, Inc., No. 3:08cv309—RJC—DCK, 2010 WL
1439411, at *5 (W.D.N.C. Apr. 9, 2010) (noting that the clerk’s entry of default is a
prerequisite to the entry of a default judgment). For this reason, the Court DENIES
WITHOUT PREJUDICE the Plaintiff’s Motion Requesting Entry of Default Against
Defendant Crystal Pennington. If the Plaintiff seeks default judgment, it must first apply

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to the clerk, not the Court, for entry of default.

It is so ORDERED.
The Clerk is directed to transmit copies of this Order to counsel of record herein

and/or pro se parties.
DATED: March 10, 2014.

GINA .GROH
UNITED STATES DISTRICT JUDGE

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