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Alexander v. Calzetta, 2:16-CV-13293. (2018)

Court: District Court, E.D. Michigan Number: infdco20181130b72 Visitors: 12
Filed: Nov. 29, 2018
Latest Update: Nov. 29, 2018
Summary: ORDER DENYING PLAINTIFF'S OBJECTION TO DEFENDANT ROSEN'S ANSWER TO COMPLAINT/MOTION FOR DEFAULT JUDGMENT (DE163) ANTHONY P. PATTI , Magistrate Judge . This matter is before the Court for consideration of Plaintiff's objection to Defendant Rosen's answer to complaint/motion for default judgment (DE 163) and Defendant Derek Rosen's response (DE 164). On October 17, 2018, the Court entered an Order requiring Defendant Rosen to show cause on or before October 29, 2018 for his failure to plead
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ORDER DENYING PLAINTIFF'S OBJECTION TO DEFENDANT ROSEN'S ANSWER TO COMPLAINT/MOTION FOR DEFAULT JUDGMENT (DE163)

This matter is before the Court for consideration of Plaintiff's objection to Defendant Rosen's answer to complaint/motion for default judgment (DE 163) and Defendant Derek Rosen's response (DE 164).

On October 17, 2018, the Court entered an Order requiring Defendant Rosen to show cause on or before October 29, 2018 for his failure to plead, respond or file a motion in response to the complaint. (DE 156.) On October 24, 2018, Defendant Rosen filed a response to the Court's show cause order, explaining that pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(g)(1), he is not required to "reply to any action brought by a prisoner" unless the court orders a reply pursuant to 42 U.S.C. § 1997e(g)(2). (DE 157.) On October 25, 2018, the Court entered an order vacating the order to show cause for good cause shown and ordering Defendant Rosen to either file an answer or other response to Plaintiff's complaint or file a joinder in one or more of the pending dispositive motions, by November 5, 2018. (Text-Only Order dated 10/25/18.) On November 5, 2018, Defendant Rosen filed his answer with affirmative defenses to Plaintiff's complaint. (DE 159.) Accordingly, contrary to Plaintiff's objection, Defendant Rosen timely responded to the Court's show cause order and timely filed an answer to Plaintiff's complaint, and Plaintiff's objection to Defendant Rosen's answer is therefore DENIED.

Further, on November 13, 2018, Plaintiff filed a request for clerk's entry of default as to Defendant Rosen "for failure to plead or otherwise defend" this case. (DE 161.) On November 14, 2018, the Court Clerk filed a notice of denial of entry of default as to Defendant Rosen because his answer was timely filed on November 5, 2018. (DE 162.) Accordingly, having failed to obtain a Clerk's entry of default under Fed. R. Civ. P. 55(a), the Court may not consider a motion for default judgment under Rule 55(b)(2). See Devlin v. Kalm, 493 F. App'x 678, 685-86 (6th Cir. 2012) ("[I]t was procedurally improper for Plaintiff to move for entry of default judgment without first obtaining an entry of default from the clerk.") (collecting cases). Accordingly, Plaintiff's motion for default judgment against Defendant Rosen is DENIED.

IT IS SO ORDERED.

Source:  Leagle

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