Opinion
Civil Action No. 05-cv-01831-PSF-CBS.
February 3, 2006
ORDER
This civil action comes before the court on Rainge-El's "Motion for Default Judgment" (filed February 2, 2006) (doc. # 34). Pursuant to the Order of Reference dated November 9, 2005 (doc. # 11) and the memorandum dated February 2, 2006 (doc. # 35), the motion was referred to the Magistrate Judge. The court has reviewed Rainge-El's Motion, the entire case file, and the applicable law and is sufficiently advised in the premises.
Under the Federal Rules of Civil Procedure, entry of a default is a prerequisite to entry of a default judgment. Ramada Franchise Systems, Inc. v. Baroda, 220 F.R.D. 303, 305 (N.D. Ohio 2004) (citation omitted). See also Fed.R.Civ.P. 55(a) and (b). Thus, the court treats Rainge-El's Motion as a request for entry of default pursuant to Fed.R.Civ.P. 55(a). Pursuant to Fed.R.Civ.P. 55(a), "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default." Here, Defendant Stommel has "otherwise defend[ed]" by filing his motion to dismiss on January 27, 2006.
Rainge-El filed his original "Prisoner Complaint" on September 21, 2005 (doc. # 3). The original "Prisoner Complaint" named two Defendants. On November 17, 2005, the court granted service by the United States Marshal. ( See doc. # 15). On November 22, 2005, Rainge-El filed a "Motion to Amend Prisoner's Complaint" (doc. # 17). On November 30, 2005, the court accepted the Amended Complaint for filing as of November 22, 2005 (doc. # 21). The Amended Complaint named five Defendants.
Before the court had ordered service of the Amended Complaint on the Defendants, Rainge-El filed a Second Amended Complaint on December 23, 2005, without written consent of the adverse parties or leave of the court pursuant to Fed.R.Civ.P. 15. Nevertheless, on January 31, 2006, the court accepted the Second Amended Complaint for filing. ( See docs. # 23 and # 33). The Second Amended Complaint names five Defendants. On February 2, 2006, the court drafted an order granting service of the Second Amended Complaint by the United States Marshal on Defendants Moschetti, Brill, Pottorff, and Cummings. The order granting service has not yet been issued to the United States Marshal. Defendants Moschetti, Brill, Pottorff, and Cummings have not yet been served with the Second Amended Complaint.
Accordingly,
IT IS ORDERED that Range-El's "Motion for Default Judgment" (filed February 2, 2006) (doc. # 34), treated by the court as a request for entry of default pursuant to Fed.R.Civ.P. 55(a), is DENIED.