Formulated Materials LLC v. Hico Concrete Inc

W.D. Oklahoma

Formulated Materials LLC v. Hico Concrete Inc

DecidedAugust 19, 2024

Docket5:24-cv-00388

StatusUnknown

This text of Formulated Materials LLC v. Hico Concrete Inc (Formulated Materials LLC v. Hico Concrete Inc) is published on Counsel Stack Legal Research, covering District Court, W.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Formulated Materials LLC v. Hico Concrete Inc, (W.D. Okla. 2024).

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

FORMULATED MATERIALS, LLC, ) an Oklahoma limited liability company, ) ) Plaintiff, ) ) v. ) Case No. CIV-24-388-SLP ) HICO CONCRETE, INC., ) a Tennessee corporation, ) ) Defendant. )

O R D E R

Before the Court is Plaintiff’s Motion for Default Judgment [Doc. No. 13]. The record reflects that on April 16, 2024 Plaintiff filed its Complaint [Doc. No. 1]. Plaintiff served Defendant on April 25, 2024. Defendant has failed to timely answer or otherwise respond. Plaintiff requests the entry of default judgment pursuant to Rule 55 of the Federal Rules of Civil Procedure. Rule 55 mandates that a “two-step process” be followed where a plaintiff seeks entry of a default judgment. First, the clerk must enter a default. See Fed. R. Civ. P. 55(a). Second, following an entry of default, the plaintiff may proceed to obtain a default judgment. Fed. R. Civ. P. 55(b). Plaintiff has not previously moved for the entry of default. Thus, its request for entry of a default judgment is premature. See Meyers v. Pfizer, Inc., 581 F. App’x 708, 710 (10th Cir. 2014); see also Garrett v. Seymour, 217 F. App’x 835, 838 (10th Cir. 2007) (describing clerk’s entry of default under Rule 55(a) as “a prerequisite for the entry of a default judgment” under Rule 55(b)(1)); Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998) (“[E]ntry of default under Rule 55(a) must precede grant of a default judgment under Rule 55(b).”); Flohrs v. Eli Lilly & Co., No. 12—2439-SAC, 2012 WL 5266116, at *1 (D. Kan. Oct. 23, 2012) (unpublished op.) (addressing the “two sequential steps” of Rule 55 and finding the plaintiff's motion for default judgment premature where he had not first requested an entry of default from the clerk). Accordingly, Plaintiffs motion for default judgment is DENIED without prejudice to refiling upon obtaining the clerk’s entry of default. IT IS SO ORDERED this 19th day of August, 2024. ) eZ. p Op SCOTT L. PALK UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

FORMULATED MATERIALS, LLC, ) an Oklahoma limited liability company, ) ) Plaintiff, ) ) v. ) Case No. CIV-24-388-SLP ) HICO CONCRETE, INC., ) a Tennessee corporation, ) ) Defendant. )

O R D E R

Before the Court is Plaintiff’s Motion for Default Judgment [Doc. No. 13]. The record reflects that on April 16, 2024 Plaintiff filed its Complaint [Doc. No. 1]. Plaintiff served Defendant on April 25, 2024. Defendant has failed to timely answer or otherwise respond. Plaintiff requests the entry of default judgment pursuant to Rule 55 of the Federal Rules of Civil Procedure. Rule 55 mandates that a “two-step process” be followed where a plaintiff seeks entry of a default judgment. First, the clerk must enter a default. See Fed. R. Civ. P. 55(a). Second, following an entry of default, the plaintiff may proceed to obtain a default judgment. Fed. R. Civ. P. 55(b). Plaintiff has not previously moved for the entry of default. Thus, its request for entry of a default judgment is premature. See Meyers v. Pfizer, Inc., 581 F. App’x 708, 710 (10th Cir. 2014); see also Garrett v. Seymour, 217 F. App’x 835, 838 (10th Cir. 2007) (describing clerk’s entry of default under Rule 55(a) as “a prerequisite for the entry of a default judgment” under Rule 55(b)(1)); Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998) (“[E]ntry of default under Rule 55(a) must precede grant of a default judgment under Rule 55(b).”); Flohrs v. Eli Lilly & Co., No. 12—2439-SAC, 2012 WL 5266116, at *1 (D. Kan. Oct. 23, 2012) (unpublished op.) (addressing the “two sequential steps” of Rule 55 and finding the plaintiff's motion for default judgment premature where he had not first requested an entry of default from the clerk). Accordingly, Plaintiffs motion for default judgment is DENIED without prejudice to refiling upon obtaining the clerk’s entry of default. IT IS SO ORDERED this 19th day of August, 2024. ) eZ. p Op SCOTT L. PALK UNITED STATES DISTRICT JUDGE

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