Joiner v. Allied Staffing

• Court: District Court, W.D. Missouri
• Decided: July 16, 2018
• Docket: 4:18-cv-00363
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

JANICE LOUISE JOINER, ) ) Plaintiff, ) ) v. ) Case No. 4:18-cv-00363-SRB ) ALLIED STAFFING, ) ) Defendant. )

ORDER Before the Court is pro se Plaintiff Janice Louise Joiner’s Motion to Enter a Judgment by Default Against the Defendant. (Doc. #9). Plaintiff failed to comply with Federal Rule of Civil Procedure 55, and the motion is DENIED. I. Background Plaintiff initiated this action on May 15, 2018, by filing a motion to proceed in forma pauperis. The Court granted the motion to proceed in forma pauperis and directed Plaintiff to file an Amended Complaint. Plaintiff filed the Amended Complaint on June 6, 2018, and on June 7, 2018, the Court directed the U.S. Marshal to serve process on Defendant. The U.S. Marshal filed a return of service evidencing service by mail (FedEx) on Defendant on June 20, 2018. On July 12, 2018, Plaintiff filed the present motion asking the Court to “enter[] a judgment by default against the Defendant.” (Doc. #13, p. 1). II. Discussion Pursuant to Federal Rule of Civil Procedure 55(a), “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter a party’s default.” Rule 55(b) provides how default judgment may be obtained, but only after a clerk’s entry of default. See Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998) (“When 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).”). Plaintiff did not move for a clerk’s entry of default under Rule 55(a). Plaintiff’s motion

for default judgment under Rule 55(b) is, therefore, procedurally improper. The Court also notes that the time for Defendant to file an answer or otherwise respond to the Complaint had not expired by the time the instant motion was filed given that service was attempted by mail. See Fed. R. Civ. P. 4(h)(1)(A); Mo. Rev. Stat. § 506.150.4. Therefore, pro se Plaintiff Janice Louise Joiner’s Motion to Enter a Judgment by Default Against the Defendant (Doc. #9) is DENIED. IT IS SO ORDERED.

/s/ Stephen R. Bough STEPHEN R. BOUGH UNITED STATES DISTRICT JUDGE Dated: July 16, 2018