Coleman v. Stanford

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DEVIN L. COLEMAN, ) Plaintiff, V. Civ. Action No. 19-696-CFC OFFICER MICHAEL Q. STANFORD, et al., ) Defendants. MEMORANDUM ORDER At Wilmington this bts of October, 2019, having considered Plaintiff's motion for summary judgment and motion for default judgment (D.1|. 22, 28); IT IS ORDERED that the motions (D.I. 22, 28) are denied without prejudice as premature, for the following reasons: 1 On August 7, 2019, Plaintiff filed a motion for summary judgment. (D.I. 22) To date, Defendants have been served, but they have not filed a responsive pleading. In addition, a scheduling and discovery order has not been entered and no discovery has taken place. The motion for summary judgment is premature and will be denied without prejudice to renew. 2 Plaintiff seeks the default judgment of Defendants on the grounds that they have been served and have failed to plead or otherwise defend. (D.I. 28) Defendants’ answers are not due until November 19, 2019. (See D.I. 26 docket entry) 3. Entry of default judgment is a two-step process. See Fed. R. Civ. P. 55(a), (b). A party seeking to obtain a default judgment must first request that the clerk of the court “enter. . . the default” of the party that has not answered the pleading or

“otherwise defend[ed],” within the time required by the rules or as extended by court order. Fed. R. Civ. P. 55(a). Even if default is properly entered, the entry of judgment by default pursuant to Rule 55(b)(2) is within the discretion of the trial court. Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984). Defendants are not required to answer or otherwise plead until November 19, 2019. In addition, there has been no entry of default and, therefore, default judgment is premature. The motion will be denied without prejudice.

UNITED STATES oA, JUDGE