GEORGE J. HAZEL, District Judge.
Presently before the Court is a motion by Plaintiff, Jennifer Cole, seeking a clerk's entry of default against multiple Defendants: Capital One. National Association ("Capital One"), Oliphant Financial, LLC ("Oliphant Financial"), Equity Loans, LLC ("Equity Loans"), Mortgage Producers, Inc. ("Mortgage Producers"), American Trust Capital Lending, Inc. ("American Trust"), E Mortgage Management, LLC ("E Mortgage"), and Herbert A. Rosenthal, Chartered ("Rosenthal"). ECF No. 74. A hearing on the motion is not necessary. See Loc. R. 105.6 (D. Md.). For the reasons that follow, the motion will be denied.
Once a defendant has been properly served, an entry of default is appropriate when that party "has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise. . . ." Fed. R. Civ. P. 55(a). A party has no duty to defend, however, unless it has been served with the summons and complaint, or waives such service, pursuant to Rule 4 of the Federal Rules of Civil Procedure. See Murphy Bros., Inc. V. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322 (1999) (holding that "one becomes a party officially, and is required to take action in that capacity, only upon service of a summons"); see also Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988) ("A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under [Rule 4]."). "The Court's entry of an Order of Default is within the discretion of the Court." Marschauser v. Travelers Indem. Co., 145 F.R.D. 605, 610 (S.D. Fla. 1992). "Although a clerk's entry of default can be ministerial pursuant to Fed.R.Civ.P. 55(a), the court may decline to enter default when it is apparent that [the default] would be set aside on a motion." United States v. $12,160.00 in U.S. Currency, No. PWG-13-3790, 2014 WL 1653270, at *1 (D. Md. Apr. 23, 2014) (internal quotation marks omitted) (citing Firetree, Ltd. v. Com., Dep't of Gen. Servs., No. 08-0995, 2008 WL 2357264, at *1 (M.D.Pa. June 5, 2008); 10A Charles Alan Wright, et al., Federal Practice & Procedure § 2682 (3d ed. 1998); Brown v. Weschler, 135 F.Supp. 622, 624 (D.D.C. 1955); Stevens v. Wiggins, No. 90-7038, 1991 WL 152960, at *1 n.2 (E.D.Pa. Aug.6, 1991); Song v. Smith, No. 91-15444, 1992 WL 2772, at *2 (9th Cir. Jan.3, 1992)).
Two defendants against whom Plaintiff seeks an entry of default — E Mortgage and Capital One — have since been voluntarily dismissed from this lawsuit with prejudice. See ECF Nos. 101-104. Because these defendants are no longer parties to this lawsuit, the Court cannot enter default against them.
Two other defendants — Oliphant Financial and Rosenthal — have since answered the Complaint. See ECF Nos. 82 & 83. Although their answers were filed late,
With respect to Mortgage Producers and American Trust, Plaintiff is seeking that the clerk reissue summonses with corrected addresses to serve these defendants, ECF No. 106, which indicates that these Parties have not yet been served.
That leaves Equity Loans. The record indicates that Equity Loans was served on or about April 16, 2015, and Equity Loans has failed to plead or otherwise defend in this action. Plaintiff, however, has failed to follow the dictates of Rule 55(a) for obtaining an entry of default. That Rule requires that, when a defendant "has failed to plead or otherwise defend" an action "and that fact is made to appear by affidavit or otherwise," then default may be entered. Fed. R. Civ. P. 55(a) (emphasis added). Plaintiff failed to establish Equity Loans' default by affidavit or otherwise. See DeTore v. Local No. 245 of Jersey City Pub. Emp. Union, 511 F.Supp. 171, 176 (D.N.J. 1981) ("If [a plaintiff] is not served with answer within 20 days after process service was effected, the [plaintiff] need only file with the clerk an affidavit, or certification in lieu of oath, under penalty of perjury, 28 U.S.C. § 1746, establishing that more than 20 days have elapsed since service of the summons and complaint, and that no answer has been served."). Thus, the Court denies Plaintiff's Motion with respect to Equity Loans.
Plaintiff's Motion for Order of Default is