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Olender v. United States, 8:19-cv-1286-T-35AEP. (2019)

Court: District Court, M.D. Florida Number: infdco20190823d44 Visitors: 11
Filed: Aug. 22, 2019
Latest Update: Aug. 22, 2019
Summary: ORDER ANTHONY E. PORCELLI , Magistrate Judge . This cause is before the Court upon Plaintiff's Motion for Entry of Clerk's Default (Doc. 15) and Defendants' Motion to Strike and Response in Opposition (Doc. 18). By the Motion, Plaintiff alleges that the United States failed to contact him for sixty days and as such he is entitled to a default judgment on the merits (Doc. 15). Federal Rule of Civil Procedure 12(a)(2) provides that when the United States is sued, it has sixty days from when
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ORDER

This cause is before the Court upon Plaintiff's Motion for Entry of Clerk's Default (Doc. 15) and Defendants' Motion to Strike and Response in Opposition (Doc. 18). By the Motion, Plaintiff alleges that the United States failed to contact him for sixty days and as such he is entitled to a default judgment on the merits (Doc. 15).

Federal Rule of Civil Procedure 12(a)(2) provides that when the United States is sued, it has sixty days from when the United States Attorney is served within which to answer or respond to the complaint. Fed. R. Civ. P. 12(a)(2). Service is proper on the United States when a copy of the complaint and summons is delivered to the Attorney General and the Civil Process Clerk at the United States Attorney's Office via certified or registered mail. Fed. R. Civ. P. 4(i)(1)(A). Here, the United States Attorney for the Middle District of Florida was served via certified mail on June 13, 2019 (Doc. 18, Ex. A). The United States had until August 12, 2019 to file its answer or response. Fed. R. Civ. P. 12(a)(2). The United States timely filed a Motion to Dismiss for lack of subject matter jurisdiction on August 9, 2019 (Doc. 16). Thus, its responsive pleading was timely under Rule 12. Further, Federal Rule of Civil Procedure 55(d) provides that, where the United States is the defendant, as here, for default to be entered against it the claimant must "establish[ ] a claim or right to relief by evidence that satisfies the court." Fed. R. Civ. P. 55(d). Here, the Plaintiff failed to provide any evidence or argument establishing entitlement to relief as required by Rule 55(d) as the Plaintiff merely restated the allegations from the Complaint and failed to provide any supporting documentation (Doc. 15).

Accordingly, it is hereby

ORDERED:

1. Plaintiff's Motion for Entry of Clerk's Default (Doc. 15) is DENIED. 2. Defendants' Motion to Strike and Response in Opposition (Doc. 18) is GRANTED.

DONE AND ORDERED.

Source:  Leagle

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