Opinion
Case No. 02-2525-CM
May 2, 2003
MEMORANDUM AND ORDER
Currently before the court is plaintiff's Motion for Default Judgment and Entry of Agreement Judgment (Doc. 18) pursuant to Federal Rule of Civil Procedure 55. For the reasons set forth below, plaintiff's motion is granted.
Rule 55 mandates a two-step process for a party seeking a default judgment in its favor. Williams v. Smithson, No. 95-7019, 1995 WL 365988, at *1 (10th Cir. June 20, 1995). First, the party must request "by affidavit or otherwise" that the clerk enter default on the docket. Fed.R.Civ.P. 55(a); see also id. (citing Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981)). "The fact that Rule 55(a) gives the clerk authority to enter a default is not a limitation on the power of the court to do so." 10A Charles A. Wright Arthur R. Miller, Federal Practice And Procedure § 2682, at 19 (3d ed. 1998). Here, the court finds the following facts:
Although Williams is an unpublished Tenth Circuit decision, Rule 36.3 permits citations to unpublished decisions when they have "persuasive value with respect to a material issue that has not been addressed in a published opinion" and "would assist the court in its disposition." 10th Cir.R. 36.3(B)(1) and (2).
• A Complaint and Summons was filed on October 11, 2002 with the United States District Court for the District of Kansas naming as defendants HCCI-Friendship Manor of Pratt, Inc.; City of Pratt, Kansas; Lifecare Centers of Kansas, Inc.; and Community Lifecare Centers, Inc. d/b/a Lifecare of Pratt (referred to in this order as "Defendants").
• Plaintiff appropriately served the Summons to the Defendants on their respective registered agents.
• The Summons stated that an answer must be given within 20 days after service of the Summons.
• The Defendants have failed to timely answer or otherwise respond to the complaint as of the present date.
Based on these facts, the court concludes that entry of default on the docket against HCCI-Friendship Manor of Pratt, Inc.; City of Pratt, Kansas; Lifecare Centers of Kansas, Inc.; and Community Lifecare Centers, Inc. d/b/a Lifecare of Pratt, is proper pursuant to Rule 55(a), and the court hereby enters the same.
Second, following the entry of default, "the party entitled to a judgment by default shall apply to the court therefore." Fed.R.Civ.P. 55(b)(2); see also id. The Tenth Circuit, however, has instructed that "a court may enter a default judgment without a hearing only if the amount claimed is a liquidated sum or one capable of mathematical calculation." Hunt v. Inter-Globe Energy, Inc., 770 F.2d 145, 148 (10th Cir. 1985); see also Venable v. Haislip, 721 F.2d 297, 300 (10th Cir. 1983). Here, the plaintiff has included a "Journal Entry of Judgment" setting forth an agreed judgment by the plaintiff and the remaining defendant in this case, Board of County Commissioners of Pratt County, Kansas. The agreed judgment indicates that the damages are capable of mathematical calculation, and the court concurs. Accordingly, the court will sign and adopt the "Journal Entry of Judgment" as the judgment in this case.
Defendants National City Bank of Michigan/Illinois f/k/a The Illinois Bank of Springfield and First America-Springfield, N.A.; the State of Kansas, Department of Human Resources; and Cedar Crest, Inc. have previously filed pleadings disclaiming any interest herein.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff's Motion for Default Judgment and Entry of Agreement Judgment (Doc. 18) is granted. First, the court finds that entry of judgment is proper pursuant to Rule 55(a), and second, the court will sign and adopt the plaintiff's "Journal Entry of Judgment" as the judgment in this case.