Opinion
3:21-CV-0076-S-BK
06-14-2021
Michelle Brawley, Plaintiff, v. Fiesta Mart, LLC, and Sulema Hernandez, Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
RENEE HARRIS TOLIVER, UNITED STATES MAGISTRATE JUDGE.
Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this case was referred to the United States magistrate judge for pretrial management. Doc. 1. The Court now considers Plaintiff's Default Request, Affidavit, Entry, and Judgment (Sum Certain) Request and Affidavit. Doc. 20. Upon review, the motion should be DENIED.
I. BACKGROUND
Plaintiff, proceeding pro se, filed suit against Defendants for employment discrimination. Doc. 3 at 1. Proceeding in forma pauperis, Doc. 11, Plaintiff relied on the Clerk of the Court and the United States Marshal to issue and execute summons on Defendant Fiesta Mart, LLC (“Fiesta Mart”). Doc. 14, Doc. 15, Doc. 16. The summons was returned unexecuted, however. Doc. 18. Plaintiff's motion followed, asking for an entry of default because Fiesta Mart failed to appear. Doc. 20 at 1-2.
II. APPLICABLE LAW
A party who fails to plead or defend a suit as required by federal rules is subject to a default. See FED. R. CIV. P. 55. Relevant here, a defendant must answer a suit within 21 days after being served with a summons and complaint. FED. R. CIV. P. 12(a). Unless service is waived, proof of service must be made to the court. See FED. R. CIV. P. 4(1)(1). If proof of service is made and 21 days elapses without an answer, the clerk must enter a default against that party. See FED. R. CIV. P. 55(a).
III. ANALYSIS
Plaintiff requests the entry of default and a default judgment against Fiesta Mart for failure to answer or appear. Doc. 20 at 1. The facts support neither. Though summons was issued to Fiesta Mart, Doc. 15, the United States Marshal returned it as unexecuted. Doc. 18. No evidence of proper service has been filed. Because Fiesta Mart has not been served, it is under no obligation to respond and, thus, is not in default. SeeSun Bank of Ocala, 874 F.2d at 276 (default judgments are a drastic remedy granted only “when the adversary process has been halted because of an essentially unresponsive party”) (quoted case omitted).
IV. CONCLUSION
Plaintiff's Default Request, Affidavit, Entry, and Judgment (Sum Certain) Request and Affidavit, Doc. 20, should be DENIED.
SO RECOMMENDED.