Opinion
CIVIL ACTION NO. 5:18-CV-0070-TBR-LLK
10-17-2018
KENNETH ROBINSON, Individually and as Personal Representative of Teena Robinson, deceased, Plaintiff v. DARREN HENDERSON, THE KEG BAR & GRILL, and COUSINS BBQ ENTERPRISES, LLC, Defendant
OPINION AND ORDER
This matter is before the Court on Plaintiff, Kenneth Robinson's, Motion for Default Judgement against Defendant, Darren Henderson. (R. 22). Henderson has responded (R. 26), and Robinson has replied (R. 28). This matter is now ripe for adjudication. For the reasons that follow IT IS HEREBY ORDERED that Robinson's Motion (R. 22) is DENIED without prejudice.
A. Background
On May 9, 2018 Robinson sued Henderson along with two other parties. (R. 1). Return of service was filed with the Court on May 15, 2018. (R. 10). On August 20, 2018 Robinson filed the instant Motion for Default Judgment with the Court pursuant to Federal Rule of Civil Procedure 55(b)(2). (R.22). Henderson has not answered Robinson's Complaint. However, Henderson has responded to the instant Motion for Default Judgment. (R. 26).
B. Discussion
Robinson's Motion for Default Judgment is procedurally premature. For Robinson to obtain default judgment, he must first request and obtain entry of default from the Clerk pursuant to Federal Rule of Civil Procedure 55(a). "An entry of default and a default judgment are distinct concepts which must be treated separately." Redd v. Vails, No. 14-14340, 2015 U.S. Dist. LEXIS 37707, at *5 (E.D. Mich. Mar. 25, 2015). "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." Cooper v. Bower, No. 5:15-CV-P249-TBR, 2017 U.S. Dist. LEXIS 87849, at *2 (W.D. Ky. June 7, 2017) (quoting VonGrabe v. Sprint PCS, 312 F. Supp. 2d 1313, 1318 (S.D. Cal. 2004)). Here, the Clerk has made no entry of default, nor has Robinson requested one. Therefore, Robinson's Motion for Default Judgment must be denied.
C. Conclusion
For the reasons stated herein, and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED that Plaintiff's Motion (R. 22) is DENIED without prejudice.
A telephonic conference is hereby set for October 19, 2018 at 9:00 a.m. CDT. Counsel must call 1-877-848-7030 then give the Access Code 2523122 and #, then when prompted press # again to join the call.
IT IS SO ORDERED.
/s/
Thomas B. Russell, Senior Judge
United States District Court
October 17, 2018 cc. Counsel of Record.