Hayek v. Big Brothers/Big Sisters of America

198 F.R.D. 518, 49 Fed. R. Serv. 3d 1010, 2001 U.S. Dist. LEXIS 934, 2001 WL 65704
CourtDistrict Court, N.D. Iowa
DecidedJanuary 25, 2001
DocketNo. C-00-4148-MWB
StatusPublished
Cited by13 cases

This text of 198 F.R.D. 518 (Hayek v. Big Brothers/Big Sisters of America) is published on Counsel Stack Legal Research, covering District Court, N.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hayek v. Big Brothers/Big Sisters of America, 198 F.R.D. 518, 49 Fed. R. Serv. 3d 1010, 2001 U.S. Dist. LEXIS 934, 2001 WL 65704 (N.D. Iowa 2001).

Opinion

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT AND DEFENDANT’S MOTION TO SET ASIDE DEFAULT

BENNETT, Chief Judge.

This matter comes before the court pursuant to plaintiff Connie Hayek’s January 10, 2001, motion for entry of default judgment. This matter also comes before the court pursuant to defendant Big Brothers/Big Sisters of America’s January 16, 2001, motion to set aside the default entered on January 12, 2001. The court had directed the Clerk of Court to enter the default of defendant Big Brothers/Big Sisters of America upon the record in this case, upon Hayek’s motion, and set a hearing on Hayek’s motion for entry of default judgment for January 23, 2001. At that hearing, plaintiff Connie Hayek was represented by Teresa O’Brien and Robert Sikma of Sioux City, Iowa. Defendant Big Brothers/Big Sisters of Siouxland was represented Douglas Phillips of Klass, Stoik, Mugan, Villone, Phillips, Orzechowski, Clausen & LaPierre, L.L.P., in Sioux City. Defendant Big Brothers/Big Sisters of America was represented by Kelly Baier of Bradley & Riley, P.C., in Cedar Rapids, Iowa.

Rule 55 of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

Rule 55. Default
(a) Entry. 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.
(b) Judgment. Judgment by default may be entered as follows:
(1) By the Clerk. When the plaintiffs claim against a defendant is for a sum certain or for a sum which can by compu[520]*520tation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person.
(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party’s representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States.
(c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

Fed.R.Civ.P. 55(a)-(c). Under Rule 55, “[wjhen a party ‘has failed to plead or otherwise defend’ against a pleading listed in Rule 7(a), entry of default under Rule 55(a) must precede grant of a default judgment under Rule 55(b).” See Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir.1998); see also Hagen v. Sisseton-Wahpeton Community College, 205 F.3d 1040, 1042 (8th Cir.2000) (citing Johnson for this requirement). “Entry of a default under Federal Rule of Civil Procedure 55(a) is not, as such, entry of a judgment; it merely permits the plaintiff to move for a default judgment under Rule 55(b)(2), assuming that the default is not set aside under Rule 55(c).” Inman v. American Home Furniture Placement, Inc., 120 F.3d 117, 118 n. 2 (8th Cir.1997). Moreover, “ ‘a default judgment cannot be entered until the amount of damages has been ascertained.’ ” Hagen, 205 F.3d at 1042 (quoting Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 97 (2d Cir.1993)). Thus, if the judgment sought is not for a sum certain, Rule 55(b)(2) provides that “the court may conduct such hearings or order such references as it deems necessary and proper” in order to “enable the court to enter judgment.” Fed.R.Civ.P. 55(b)(2). In short, as this court has explained, Rule 55 “requires two steps before entry of a default judgment: first, pursuant to Fed.R.Civ.P. 55(a), the party seeking a default judgment must have the clerk enter the default by submitting the required proof that the opposing party has failed to plead or otherwise defend; second, pursuant to Fed.R.Civ.P. 55(b), the moving party may seek entry of judgment on the default under either subdivision (b)(1) or (b)(2) of the rule.” Dahl v. Kanawha Inv. Holding Co., 161 F.R.D. 673, 683 (N.D.Iowa 1995).

In the order entered on January 12, 2001, the court concluded that Hayek had satisfied the requirements for the first step in the process, at least as to defendant Big Brothers/Big Sisters of America, and therefore directed the Clerk of Court to enter the default of Big Brothers/Big Sisters of America on the record. See id.; Fed.R.Civ.P. 55(a); see also Order of January 12, 2001, at 4. The question now before the court is whether Hayek has also satisfied the requirements of the second step in the process, entry of default judgment pursuant to Rule 55(b), or whether Big Brothers/Big Sisters of America has instead satisfied the “good cause” requirement of Rule 55(c) to set aside the January 12, 2001, entry of default. See Inman, 120 F.3d at 118 n. 2 (“Entry of a default under Federal Rule of Civil Procedure 55(a) is not, as such, entry of a judgment; it merely permits the plaintiff to move for a default judgment under Rule 55(b)(2), assuming that the default is not set aside under Rule 55(c).”).

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Bluebook (online)
198 F.R.D. 518, 49 Fed. R. Serv. 3d 1010, 2001 U.S. Dist. LEXIS 934, 2001 WL 65704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hayek-v-big-brothersbig-sisters-of-america-iand-2001.