Opinion
Case No. 2:07-cv-1096.
February 7, 2008
OPINION AND ORDER
This matter is before the Court for consideration of Plaintiff's December 21, 2007 Motion for Summary Pursuant to Civil Rule 55 of the Rules of Civil Procedure. (Doc. # 8.) In this one-paragraph filing, Plaintiff asks the Court to enter judgment against Defendants "[b]ased upon the fact that the expiration date of his filing for a disposition of the instant case has surpassed, (28) twenty eight days, and therefore summary judgment is the only remedy to resolve this case." (Doc. # 8, at 1.) It appears to this Court that Plaintiff, who is proceeding pro se, is asking the Court to enter judgment based on Defendants' purported failure to plead or otherwise defend in accordance with the deadlines set forth in the Federal Rules of Civil Procedure.
Defendants similarly construe Plaintiff's motion and ask the Court to deny said motion. They argue that they timely filed an answer and that genuine issues of material fact exist in this action.
To the extent that Plaintiff's motion can be construed as a motion for default judgment under Federal Rule of Civil Procedure 55, the Court finds the motion not well taken. Putting aside for the moment the merits of whether Defendants failed to plead or otherwise respond in a timely manner, the Court recognizes that Plaintiff's request is procedurally flawed.
The docket fails to indicate that, prior to seeking a default judgment, Plaintiff first obtained an entry of default as contemplated by Rule 55(a). An entry of default is distinct from entry of a default judgment. O.J. Distrib., Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 353 (6th Cir. 2003); see also 10A Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure § 2692 (3rd ed. 2003); S.D. Ohio Civ. R. 55.1(b). By asking only for a default judgment, Plaintiff has failed to follow the sequential procedure set forth in the Rule. See Brantley v. Runyon, No. C-1-96-842, 1997 WL 373739, at *1 (S.D. Ohio June 19, 1997) ("In order to obtain a default judgment under Rule 55(b)(2), there must first be an entry of default as provided by Rule 55(a)."). See also Webster Indus., Inc. v. Northwood Doors, Inc., 244 F. Supp. 2d 998, 1003 (N.D. Iowa 2003) ("`entry of default under Rule 55(a) must precede grant of a default judgment under Rule 55(b)'" (quoting Hayek v. Big Brothers/Big Sisters of America, 198 F.R.D. 518, 520 (N.D. Iowa 2001))); Lee v. Brotherhood of Maint. of Way Employees — Burlington N. Sys. Fed'n, 139 F.R.D. 376, 380 (D. Minn. 1991) ("an entry of default is a prerequisite to a default judgment under Rule 55(b)"). The Court therefore cannot enter a default judgment under Rule 55(b). Cf. O.J. Distrib., Inc., 340 F.3d. at 352 ("`Rule 55 permits the clerk to enter a default when a party fails to defend an action as required. The court may then enter default judgment.'" (Emphasis added)) (quoting Weiss v. St. Paul Fire Marine Ins. Co., 283 F.3d 790, 794 (6th Cir. 2002)).
To the extent that Plaintiff's motion can be construed as a motion for summary judgment under Federal Rule of Civil Procedure 56, the Court finds no basis for entering such judgment at this time. Plaintiff's sole rationale for obtaining judgment is Defendants' alleged failure to plead or otherwise respond to his Complaint in a timely manner. But as Defendants note, the Magistrate Judge issued an October 26, 2007 Order that provided that "[e]ach defendant is ORDERED to answer or otherwise respond to the complaint within forty-five (45) days after being served with a copy of the complaint and summons." (Doc. # 2, at 3.) The docket indicates that service was made on Defendants on November 19, 2007. (Doc. # 7.) Thereafter, Defendants filed their answer on December 26, 2007. (Doc. # 12.) The answer fell within the period of time ordered by the Magistrate Judge. Moreover, as Defendants state in their briefing, they do not admit material facts involved in this case.
For the foregoing reasons, the Court DENIES Plaintiff's December 21, 2007 Motion for Summary Pursuant to Civil Rule 55 of the Rules of Civil Procedure. (Doc. # 8.)