United States District Court, S.D. Ohio, Western Division
WILLIAM S. OLIVER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
H. Rice, District Judge District Judge
REPORT AND RECOMMENDATION THAT
PLAINTIFF'S MOTION FOR A DEFAULT JUDGMENT (DOC. 10) BE
MICHAEL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
Social Security disability case is before the Court on
pro se Plaintiff's motion for a default
judgment, filed on June 12, 2017. Doc. 10. Plaintiff
initiated this case by moving to proceed in forma
pauperis (“IFP”) on March 29, 2017. Doc. 1.
Plaintiff's motion to proceed IFP was granted on March
30, 2017, and his complaint was separately filed on that
date. See doc. 3. Subsequently, the Commissioner was
served on April 7, 2017, making the Commissioner's answer
date June 6, 2017. Doc. 6; see also Fed. R. Civ. P.
6, 2017, the Commissioner filed the first certified
administrative record (doc. 7), but did not file a separate
answer. Pro se Plaintiff, without having sought an
entry of default, now moves for a default judgment arguing
that, pursuant to Fed.R.Civ.P. 55, a default judgment is
proper as a result of the Commissioner's failure to file
an answer. See doc. 10 at PageID 1002. Pro
se Plaintiff's motion for a default judgment is not
well-taken for several reasons.
even assuming, arguendo, that the Commissioner
“has failed to plead or otherwise defend, ”
see Fed. R. Civ. P. 55, pro se
Plaintiff's motion for a default judgment is premature in
the absence of pro se Plaintiff having first sought
an entry of default. See Fed. R. Civ. P. 55(a);
see also Ross v. Teleperformance USA, Inc., No.
3:13CV00038, 2014 WL 99413, at *1 (S.D. Ohio Jan. 9, 2014)
(noting that Rule 55 “provides for a two-step process
in obtaining a default against a defendant who has failed to
plead or otherwise defend”; namely, first
“request[ing] from the Clerk of Court an entry of
default” and, second, after “receiving an entry
of default . . . mov[ing] the Court for a default
again assuming, arguendo, that the Commissioner
“has failed to plead or otherwise defend, ” when
moving for a default judgment against an agency of the United
States --such as the Social Security Administration -- a
default judgment is appropriate only if the plaintiff
“establishes a claim or right to relief by evidence
that satisfies the court.” Fed.R.Civ.P. 55(d). Here,
pro se Plaintiff has not pointed to any evidence or
presented any developed argument sufficient to support his
claim or his right to the relief sought at this time.
See doc. 10; see also Sherrills v.
Berryhill, No. 1:17-CV-0030, 2017 WL 1399988, at *3
(N.D. Ohio Apr. 4, 2017), report and recommendation
adopted sub nom. Sherrills v. Comm'r of Soc. Sec.,
No. 1:17 CV 30, 2017 WL 1387173 (N.D. Ohio Apr. 18,
2017). Pro se Plaintiff will, however, have an
opportunity to present arguments and cite to the
administrative record in his Statement of Errors.
contrary to pro se Plaintiff's assertion, the
Commissioner has not “failed to plead or otherwise
defend[.]” Fed.R.Civ.P. 55(a). Under the Local Rules of
Court, the Commissioner's filing of the certified
administrative record -- which the Commissioner filed in this
case on June 6, 2017 -- “shall serve as the
answer.” S.D. Ohio Local Rule 8.1(a).Accordingly, the
Commissioner is not in default under Rule 55.
upon all of the foregoing, the undersigned RECOMMENDS that
Plaintiff's motion for a default judgment (doc. 10) be
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within FOURTEEN days after being served with
this Report and Recommendation. This period is not extended
by virtue of Fed.R.Civ.P. 6(d) if served on you by electronic
means, such as via the Court's CM/ECF filing system. If,
however, this Report and Recommendation was served upon you
by mail, this deadline is extended to SEVENTEEN DAYS by
application of Fed.R.Civ.P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a
motion for extension, which the Court may grant upon a
showing of good cause.
objections filed shall specify the portions of the Report and
Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report
and Recommendation is based, in whole or in part, upon
matters occurring of record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon
or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs.
may respond to another party's objections within FOURTEEN
days after being served with a copy thereof. As noted above,
this period is not extended by virtue of Fed.R.Civ.P. 6(d) if
served on you by electronic means, such as via the
Court's CM/ECF filing system. If, however, this Report
and Recommendation was served upon you by mail, this deadline
is extended to SEVENTEEN DAYS by application of Fed.R.Civ.P.
to make objections in accordance with this procedure may
forfeit rights on appeal. See Thomas v. Arn, 474
U.S. 140, 153-55 (1985); United States ...