Opinion
CASE NO. 3:11-cv-275-J-32JBT.
May 20, 2011
ORDER
THIS CAUSE is before the Court on the Motion for Entry for Default Judgment ("Motion for Default") (Doc. 12); Defendant Natixis Real Estate Capital, Inc.'s ("Natixis") Motion for Extension of Time to Respond to Complaint ("Motion for Extension of Time") (Doc. 14); and the Motion to Strike Defendant's Motion for Extension of Time ("Motion to Strike") (Doc. 20).
Plaintiff's response to the Motion for Extension of Time is due on or before May 23, 2011. ( See Doc. 16.) However, the Court construes the Motion to Strike as a response and, therefore, will not await a separate response from Plaintiff.
The Motion for Default seeks the entry of default against all Defendants based on their alleged failure to defend or otherwise appear in this action. (Doc. 12.) Rule 55(a), which governs the entry of default, provides: "When 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." Fed.R.Civ.P. 55(a). However, "[d]efault is to be used sparingly," and cases should normally be adjudicated on their merits. Mitchell v. Brown Williamson Tobacco Corp., 294 F.3d 1309, 1316 (11th Cir. 2002).
Although Plaintiff's Motion is titled "Motion for Entry for Default Judgment" and requests that "a default judgment be entered," the Court construes the Motion as seeking entry of default, not default judgment, because no default has been entered yet against any of the Defendants in this case. See Fed.R.Civ.P. 55(b)(1) (providing for the entry of default judgment "against a defendant who has been defaulted for not appearing").
There are six Defendants in this case: Antoniette Brooks, Natixis, Myra Mitchell, Barbara Jackson, Keith Richardson, and Access E-Mortgage, Inc. ( See Doc. 1.) A review of the docket indicates that only Natixis, Myra Mitchell, Keith Richardson, and Access E-Mortgage, Inc. have been served. ( See Docs. 8, 9, 10, 11.) Because no returns of service have been filed for Antoniette Brooks and Barbara Jackson, the Court finds that entry of default as to these Defendants is inappropriate and the Motion for Default is due to be denied without prejudice as to them.
With respect to the other Defendants, the Court finds that entry of default is appropriate only against Keith Richardson and Access E-Mortgage, Inc. because despite being served, these Defendants have not appeared in the case. Entry of default will not be entered against Myra Mitchell and Natixis because they have made an appearance and defended this action by filing an Answer (Doc. 17) and a Motion to Dismiss (Doc. 19), respectively. Although it appears that the Motion to Dismiss was not timely filed, entry of default against Natixis would be improper at this early stage of the proceedings given that "cases should normally be adjudicated on their merits." Thus, the Motion to Dismiss will be deemed timely. The Court will grant the Motion for Extension of Time and will deny the Motion to Strike.
Natixis has also filed a Motion for Extension of Time (Doc. 14), a Supplement thereto (Doc. 15), and a Notice to the Courts [sic] to Take Judicial Notice (Doc. 18).
Accordingly, it is ORDERED:
1. The Motion for Default (Doc. 12) is GRANTED in part and DENIED in part. The Motion is granted as to Keith Richardson and Access E-Mortgage, Inc. The Motion is denied as to Myra Mitchell and Natixis. The Motion is denied without prejudice as to Antoniette Brooks and Barbara Jackson.
2. The Clerk of Court is DIRECTED to enter default against Defendants Keith Richardson and Access E-Mortgage, Inc.
3. The Motion for Extension of Time (Doc. 14) is GRANTED.
4. The Motion to Strike (Doc. 20) is DENIED. DONE AND ORDERED at Jacksonville, Florida.