United States District Court, S.D. Ohio, Eastern Division
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Michael
Harrington's Motion for Default Judgment against
Defendant Jennifer Michael (ECF No. 26) and on the Magistrate
Judge's April 24, 2018 Report and Recommendation (ECF No.
29). For the reasons set forth below, the Court DENIES
WITHOUT PREJUDICE Plaintiff's Motion for Default Judgment
against Defendant Jennifer Michael (ECF No. 26) and ADOPTS
the Report and Recommendation (ECF No. 29).
August 21, 2017, Mr. Harrington filed a Complaint against
Defendants Delta Career Education Corporation d/b/a
Miami-Jacobs Career College (“Delta”), the
Miami-Jacobs Business College Company d/b/a Miami-Jacobs
Career College (“Miami-Jacobs”), and Jennifer
Michael. Ms. Michael was duly served a copy of
Plaintiff's Complaint on September 1, 2017. (ECF No. 5).
Ms. Michael's Answer to the Complaint was due on
September 22, 2017. (Id.). At the time of filing
this motion, Ms. Michael has not served an Answer to the
Complaint nor has she requested an extension of time to
answer or plead. (ECF No. 26). The Magistrate Judge thus
issued an Order to Show Cause, requiring Plaintiff Harrington
to show cause as to why the claims against Ms. Michael should
not be dismissed for want of prosecution, unless Mr.
Harington applied for an entry of default from the Clerk.
(ECF No. 23). In response to the show cause, Mr. Harrington
filed a Motion for Default Judgment with the Court (ECF No.
26) but did not apply for an entry of default with the Clerk.
and Miami-Jacobs (collectively, the “Miami-Jacobs
Defendants”) did respond to the Complaint by filing a
Motion to Compel Mediation and Arbitration and Dismiss
(“Motion to Dismiss”) on September 22, 2017. (ECF
No. 8). Subsequently, the Miami-Jacobs Defendants'
counsel withdrew, and the Magistrate Judge advised them that
they must obtain counsel. She further ordered them to obtain
a trial attorney to appear at an April 6, 2018 status
conference. (ECF No. 22). The Miami-Jacobs Defendants were
warned that failure to appear through counsel at the status
conference would result in the recommendation that default be
entered against them. (Id.). On April 6, 2018, the
Magistrate Judge issued an Order to Show Cause, directing the
Miami-Jacobs Defendants to show cause why the Court should
not enter default judgment for knowingly failing to comply
with the Court's Order to obtain counsel or appear at the
status conference as directed. (ECF No. 27). The show cause
order was returned as “refused.” (ECF No. 28).
The Magistrate Judge then issued a Report and Recommendation
on April 24, 2018, recommending that the Court direct the
Clerk to enter default against the Miami-Jacobs Defendants
and that, once default is entered, that the Plaintiff be
permitted to move for default judgment. (ECF No. 29). The
Miami-Jacobs Defendants acknowledged service of the Report
and Recommendation on April 20, 2018 (ECF No. 31, 32) but
have not objected.
LAW & ANALYSIS
Default Judgment against Jennifer Michael
Rule of Civil Procedure 55(a) states that 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 the party's default.” Fed.R.Civ.P. 55(a). To
obtain a default judgment under Federal Rule of Civil
Procedure 55(b), there must first be an entry of default
under 55(a) with the Clerk. See Shepard Claims Serv. Inc.
v. William Darrah & Assoc., 796 F.2d 190, 193 (6th
Cir. 1986) (stating “entry of default is . . . the
first procedural step on the road to obtaining a default
judgment”). Federal Rule of Civil Procedure
12(a)(1)(A)(i) states that a defendant “must serve an
answer within 21 days after being served with a
complaint.” Fed.R.Civ.P. 12(a).
Harrington is requesting an entry of default judgment against
Ms. Michael for failing to respond to his Complaint and
failing to ask for an extension. The Court agrees that Ms.
Michael failed to serve her Answer or otherwise respond to
the Complaint within the allotted time under Federal Rule of
Civil Procedure 12 and thus default may be appropriate. Mr.
Harrington, however, failed to first apply for entry of
default with the Clerk, which is a necessary prerequisite to
a Court's entry of default judgment. The Motion for
Default Judgment against Jennifer Michael (ECF No. 26) is
therefore DENIED WITHOUT PREJUDICE. Once Mr. Harrington
applies for default with the Clerk and default is entered,
Mr. Harrington may re-file a Motion for Default Judgment.
Report and Recommendation
Report and Recommendation recommending that this Court direct
the Clerk to enter default against the Miami-Jacobs
Defendants was mailed to the Miami-Jacobs Defendants on April
25, 2018. (ECF No. 29). Miami-Jacobs acknowledged service on
April 30, 2018. (ECF No. 31). Delta acknowledged service on
May 3, 2018 (ECF No. 32). The Report and Recommendation
specifically advised the parties that the failure to object
results in a waiver of the right to have the district judge
review the Report and Recommendation de novo, and
also operates as a waiver of the right to appeal the decision
of the District Court adopting the Report and Recommendation.
(ECF No. 29). The parties have failed to file any objections,
and the deadline for objections (May 8, 2018) has lapsed. The
Court therefore ADOPTS the Report and Recommendation (ECF No.
29) and DIRECTS the Clerk to enter default against Defendants
Delta Career Education Corporation and The Miami-Jacobs
Business College Company, d/b/a Miami-Jacobs Career College.
Once default is entered, Plaintiff is permitted to move for
default Judgment. Further, given the Court's decision to
direct the Clerk to enter default, the Miami-Jacobs'
Motion to Dismiss (ECF No. 8) is MOOT.
reasons set forth above, the Court hereby DENIES WITHOUT
PREJUDICE the Motion for Default Judgment against Jennifer
Michael (ECF No. 26). Mr. Harrington is free to apply for
entry of default with the Clerk and then re-file a motion for
entry of default judgment with this Court. The Magistrate
Judge's Report and Recommendation (ECF No. 29) is hereby
ADOPTED and the Clerk is DIRECTED to enter default against
Defendants Delta Career Education Corporation and The
Miami-Jacobs Business College Company, d/b/a ...