Termarsch v. Homeeq Servicing Corporation

Full title: DAVID LEE TERMARSCH and SHERRY ANN TERMARSCH, Plaintiffs, v. HOMEEQ…

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Oct 21, 2005

Case No. 05-73137 (E.D. Mich. Oct. 21, 2005)

Opinion

Case No. 05-73137.

October 21, 2005

OPINION AND ORDER

PATRICK DUGGAN, Senior District Judge

Plaintiffs initiated this pro se lawsuit on August 15, 2005, raising several claims apparently related to a mortgage on real property. Some of the defendants, including New Century Mortgage Corporation ("New Century"), subsequently filed separate motions for more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure. Apparently in response to defendants' motions, plaintiffs filed an amended complaint on September 19, 2005. Defendants New Century and HomeEq Servicing Corporation filed answers to the amended complaint on October 3 and 4, 2005, respectively. On October 3, Defendant Fabrizio Brooks filed a motion to dismiss the amended complaint for failure to state a complaint upon which relief may be granted. Presently before the Court is plaintiffs' Motion for a Hearing On Plaintiff's [sic] Motion for Default Judgement Under Rule 55(a)(1) and (2), filed October 18, 2005. In their motion, plaintiffs ask the Court to schedule a hearing with respect to the motion for default judgment that they filed on October 3, 2005, which the Clerk denied on October 6, 2005.

Rule 55(a) of the Federal Rules of Civil Procedure provides:

When 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.

FED. R. CIV. P. 55(a). Rule 55 provides that the Clerk may enter judgment by default if inter alia the defendant has been defaulted for failure to appear. FED. R. CIV. P. 55(b)(1). In this case, New Century filed a motion for more definite statement in response to plaintiffs' initial complaint in lieu of filing an answer. The Federal Rules of Civil Procedure allow a defendant to file such a motion prior to filing an answer. See FED. R. CIV. P. 12(a)(4) and 12(e). In response to plaintiffs' amended complaint, New Century filed a timely answer. New Century, therefore, has not failed to plead or otherwise defend. As a result, Plaintiffs are not entitled to an entry of default or a default judgment.

Accordingly,

IT IS ORDERED, that Plaintiffs' Motion for a Hearing on Plaintiffs' Motion for Default Judgment under Rule 55(a)(1) and (2) is DENIED.