Filed: Jan. 10, 2020
Latest Update: Jan. 10, 2020
Summary: MEMORANDUM OPINION and ORDER EMILY C. MARKS , Chief District Judge . I. INTRODUCTION Now before the Court is a motion for default judgment filed by Plaintiffs Kenneth Eady and Julie Eady on December 31, 2019. (Doc. 77). On June 13, 2017, the Plaintiffs filed suit against Medical Depot, Inc. d/b/a Drive DeVilbiss Healthcare. (Doc. 1). A second amended complaint was filed adding Fort Metal Plastic Co., Ltd. as a Defendant on April 20, 2018. (Doc. 49). The Second Amended Complaint pleads cla
Summary: MEMORANDUM OPINION and ORDER EMILY C. MARKS , Chief District Judge . I. INTRODUCTION Now before the Court is a motion for default judgment filed by Plaintiffs Kenneth Eady and Julie Eady on December 31, 2019. (Doc. 77). On June 13, 2017, the Plaintiffs filed suit against Medical Depot, Inc. d/b/a Drive DeVilbiss Healthcare. (Doc. 1). A second amended complaint was filed adding Fort Metal Plastic Co., Ltd. as a Defendant on April 20, 2018. (Doc. 49). The Second Amended Complaint pleads clai..
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MEMORANDUM OPINION and ORDER
EMILY C. MARKS, Chief District Judge.
I. INTRODUCTION
Now before the Court is a motion for default judgment filed by Plaintiffs Kenneth Eady and Julie Eady on December 31, 2019. (Doc. 77).
On June 13, 2017, the Plaintiffs filed suit against Medical Depot, Inc. d/b/a Drive DeVilbiss Healthcare. (Doc. 1). A second amended complaint was filed adding Fort Metal Plastic Co., Ltd. as a Defendant on April 20, 2018. (Doc. 49). The Second Amended Complaint pleads claims against both Defendants in each count, including claims under the Alabama Extended Manufacturers' Liability Doctrine (count I), for negligence and/or wantonness (count II), for breach of warranty (count III), and for loss of consortium (count IV).
Fort Metal Plastic Co., Ltd. failed to file an answer or otherwise appear in this lawsuit within the time limits set forth in the Federal Rules of Civil Procedure. Accordingly, on December 6, 2019, the Clerk entered a default against Fort Metal Plastic Co., Ltd. (Doc. 76). On December 31, 2019, the Plaintiffs filed the instant motion requesting that judgment be entered in their favor against Fort Metal Plastic Co., Ltd. and that a damages hearing be set. (Doc. 77).
II. JURISDICTION and VENUE
This Court possesses subject-matter jurisdiction over this case pursuant to 28 U.S.C. § 1332, there being complete diversity of citizenship and more than $75,000 in controversy. Personal jurisdiction and venue are uncontested.
III. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 55(a), the Clerk of Court must enter default 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 . . . ." Once a default has been entered, "[t]he defendant, by his default, admits the plaintiff's well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established." Nishimatsu v. Const. Co., Ltd. V. Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). However, "[w]hile a defaulted defendant is deemed to admit the plaintiff's well-pleaded allegations of fact, he is not held to admit facts that are not well-pleaded or to admit conclusions of law." Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1244 (11th Cir. 2015).
IV. DISCUSSION
When a case involves multiple defendants, a court may determine that it should not enter default judgment against any one defendant unless and until the court enters judgment against the others. Gulf Coast Fans v. Midwest Electronics Importers, Inc., 740 F.2d 1499, 1512 (11th Cir. 1984) (holding that when defendants are potentially jointly liable or even just similarly situated, "judgment should not be entered against a defaulting party if the other defendant prevails on the merits."); see also Carn as Tr. of SpecAlloy Corp. v. Peluso, 2019 WL 4553105, at *1 (M.D. Ala. 2019). Courts are reluctant to enter default against only some defendants "given the possibility that the defaulting defendants and non-defaulting defendants are similarly situated or, potentially, jointly liable." Will-Burn Recording & Pub. Co. v. Universal Music Grp. Records, 2009 WL 211082, at *2 (S.D. Ala. 2009). In this case, all of the claims are asserted against both Defendants in each count of the second amended complaint. Defendant Medical Depot, Inc. filed an answer (doc. 51) and the Plaintiffs are proceeding on their claims against that Defendant. The Court finds, therefore, that the motion for default judgment is due to be DENIED without prejudice to being refiled at the appropriate time. See Carn as Tr. Of SpecAloy Corp., 2019 WL 4553105, at *1.
V. CONCLUSION
Accordingly, it is ORDERED that the Plaintiffs' Motion for Default Judgment (doc. 77) is DENIED without prejudice.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the fee to file an appeal is $505.00
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 S.Ct. 911 (1945)). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 S.Ct. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
