Opinion
No. 14-11346
01-28-2016
RANDALL C. MITCHELL, Plaintiff, v. ABDELLATIF BADAWI, ET AL., Defendants.
District Judge Bernard A. Friedman
REPORT AND RECOMMENDATION
On March 31, 2014, Plaintiff Randall C. Mitchell, a prison inmate in the custody of the Michigan Department of Corrections ("MDOC"), filed a pro se civil rights complaint under 42 U.S.C. § 1983, alleging deliberate indifference to his serious medical needs, in violation of the Eighth Amendment. Before the Court is his Motion for Default Judgment as to Defendant Lisa Adray [Doc. #46], which has been referred for a Report and Recommendation under 28 U.S.C. § 636(b)(1)(B). I recommend that the motion be DENIED.
I. FACTS
On May 7, 2015, the Court ordered service on Adray by the United States Marshal, and directed the MDOC to provide her last known address only to the United States Marshal. The docket does not indicate that Defendant Lisa Adray was properly served with a summons and complaint. However, attorneys from the Michigan Department of Attorney General filed an appearance on behalf of Ms. Adray on August 4, 2015 [Doc. #47 and #48], and filed a motion for summary judgment the same day [doc. #49]. There has been no Clerk's Office entry of default as to Ms. Adray.
II. DISCUSSION
Under Fed.R.Civ.P. 55(b), a judgment by default may be entered against a defendant who has failed to plead or otherwise defend against an action. But in order for a Plaintiff to obtain a judgment by default, he must first request a Clerk's entry of default pursuant to Fed.R.Civ.P. 55(a). A default judgment is governed by Rule 55(b)(2). "An entry of default and a default judgment are distinct concepts which must be treated separately." Northland Ins. Co. v. Cailu Title Corp., 204 F.R.D. 327, 330 (W.D.Mich.2000) (quoting United States v. Topeka Livestock Auction, Inc., 392 F.Supp. 944, 950 (N.D.Ind.1975)). In Vongrabe v. Sprint PCS, 312 F.Supp.2d 1313, 1318 (S.D.Cal.2004), the court explained:
"The section of the rule regarding default is dealt with in Rule 55(a), and the section of the rule regarding judgment is dealt with in Rule 55(b). These sections have separate headings and procedures that are distinct from one another. Thus, a plain reading of Rule 55 demonstrates that entry of default by the clerk is a prerequisite to an entry of default judgment."
See also Ramada Franchise Sys, Inc., 220 F.R.D. 303, 305 (N.D.Ohio 2004) (quoting Sys. Indus., Inc. v. Han, 105 F.R.D. 72, 74 (E.D.Penn.1985)) ("Entry of a default ... is a prerequisite to entry of a default judgment under Rule 55(b)."); DeTore v. Local # 245 of the Jersey City Public Employees Union, 511 F.Supp. 171, 176 (D.N.J.1981) ("However, no default judgment may be entered under either F.R.Civ.P. 55(b)(1) or (b)(2) unless a default has previously been entered by the clerk under 55(a). Thus, the entry of default is an essential predicate to any default judgment.").
In this case, the Clerk has not entered a default under Rule 55(a). Plaintiff is not entitled to a default judgment under Rule 55(b).
III. CONCLUSION
I therefore recommend that Plaintiff's Motion for Default Judgment [Docket #49] be DENIED.
Any objections to this Report and Recommendation must be filed within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v Walters, 638 F.2d 947 (6 Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v Secretary of HHS, 931 F.2d 390, 401 (6 Cir. 1991); Smith v Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6 Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.
Within fourteen (14) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than twenty (20) pages in length unless by motion and order such page limit is extended by the court. The response shall address specifically, and in the same order raised, each issue contained within the objections.
s/R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE Date: January 28, 2016
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record on January 28, 2016, electronically and/or by U.S. mail.
s/C. Ciesla
Case Manager