ORDER DENYING PLAINTIFF'S REQUEST FOR ENTRY OF DEFAULT

Re: Dkt. No. 39

MAXINE M. CHESNEY, District Judge.

Before the Court is plaintiff's Request for Entry of Default ("Request"), filed May 22, 2018. Having read and considered the Request, the Court rules as follows.

On January 3, 2018, plaintiff filed its initial complaint, and, on April 23, 2018, filed its First Amended Complaint ("FAC"). On May 1, 2018, defendant, who proceeds pro se, filed a motion to dismiss, in which he challenges the complaint filed "[o]n January 3, 2018" (see Def.'s Mot. at 3), i.e., the initial complaint. Also, on May 1, 2018, plaintiff served the FAC on defendant by mail (see Pl.'s Proof of Service, filed May 22, 2018), which pleading defendant necessarily received at the earliest on May 2, 2018, i.e., after the date on which he had filed his motion to dismiss. Relying on the fact that defendant has not filed a response to the FAC, plaintiff contends defendant's default should be entered. The Court disagrees.

Until Rule 55(a) of the Federal Rules of Civil Procedure, entry of default is appropriate where a defendant has "failed to plead or otherwise defend." See Fed. R. Civ. P. 55(a). Here, the motion defendant filed on May 1 was directed at the only pleading plaintiff had caused to be served upon him at that time. Further, defendant's motion remains pending.1 Under such circumstances, the Court declines to find defendant has failed to plead or otherwise defend against plaintiffs' claims.

Accordingly, plaintiff's Request for Entry of Default is hereby DENIED.

IT IS SO ORDERED.