United States District Court, M.D. Tennessee, Nashville Division
DONALD W. FISHER, Plaintiff,
CHRISTOPHER GATES AND GATES CONSTRUCTION AND DESIGN, LLC, Defendants.
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY, U.S. MAGISTRATE JUDGE
before the Court is Defendants' Motion to Vacate Entry of
Default (Docket No. 55) and Plaintiff's First Motion for
Default Judgment (Docket No.1 61). For the reasons stated
herein, the undersigned recommends that Defendants'
Motion to Vacate Entry of Default (Docket No. 55) be Granted
in part and Denied in part; and Plaintiff's First Motion
for Default Judgment (Docket No. 61) be Granted in part and
Denied in part. Specifically, the undersigned recommends the
entry of default as to the individual Defendant, Christopher
Gates, be vacated but that the entry of default as to the
corporate defendant, Gates Construction and Design, LLC,
remain and that the Motion for Default Judgment be Granted as
to Gates Construction and Design, LLC only.
Rule of Civil Procedure 55 (a) requires the clerk of court to
enter a party's default when the 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.” Fed.R.Civ.P. 55
(a). Upon entry of default a party may proceed to seek
default judgment under Rule 55 (b), either from the clerk of
court or the district court. The Sixth Circuit has held that
entry of default is a prerequisite to a default judgment.
Devlin v. Kalm, 493 F. App'x 678, 685-686
(6th Cir. 2012). “Once a default is entered
against a defendant, that party is deemed to have admitted
all the well pleaded allegations in the complaint except
those relating to damages.” Microsoft Corp. v.
McGee, 490 F.Supp.2d 874, 878 (S. D. Ohio
2007)(citations omitted). Rule 55 (c) of the Fed. Rules of
Civil Procedure allows the district court to set aside an
entry of default for good cause. Fed.R.Civ.P. Rule 55 (c).
Request to Set Aside Default
the entry of default in this case Defendant filed an Answer
to the complaint (Docket No. 54) and Motion to Vacate Entry
of Default (Docket No. 55). Plaintiff has not filed a
response to Defendant's motion to vacate.
Court acknowledges that Defendants are acting pro se in this
matter, and their pro se status is a factor for the court to
consider in its good cause determination in setting aside a
Defendant's default. Dessault Systemes S. A. v.
Childress, 663 F.3d 832, 844 (6th Cir.
2011)(Citing Shepard Claims Serv., Inc. v. William Darrah
and Associates, 796 F.2d 190, 194 (6th Cir.
1986). Nevertheless, pro se litigants are not exempt from the
requirements of the Federal Rules of Civil Procedure.
McNeill v. United States, 508 U.S. 106, 133 (1980).
The Court also notes that “mere negligence or failure
to act reasonably is not enough to sustain a default.”
United States v. $22, 050.00 in United States
Currency, 595 F.3d 318, 327 (6th Cir. 2010).
the failure of the individually named defendant to answer the
complaint is clearly negligent, nothing before the court
suggests that defendant acted to thwart the judicial
proceedings or with reckless disregard for the effect of his
conduct on the proceedings. See, Childress, 663 F.3d
at 841. It is clear from the pleadings that the defendant
wishes to defend against this action. Therefore, the Court
recommends that the default against the individually named
defendant be set aside.
respect to the corporate defendant, the Court has been clear
that the defendant corporation must retain an attorney to
represent its interest in the case. Docket No. 57. Despite
being repeatedly advised of this requirement and its
consequences, defendant corporation has not obtained counsel
therefore the court recommends that the default as to the
defendant corporation remain and not be vacated.
Motion for Default Judgment
has filed a Motion For Default Judgment (Docket No. 61) based
upon the previously issued default (Docket No. 51).
Defendants have not responded to the Motion for Default
Judgment. Plaintiff contends that default judgment is
appropriate based upon the corporate defendant's failure
to comply with the Court's previous orders requiring that
any pleadings be filed by an attorney admitted to practice
before this court and that the Answer filed on behalf of the
individually named defendant fails to comply with the
pleading requirements of Rule 8 (b) and (c) Fed. R. Civ. P..
Docket No. 61, pp. 1-2.
noted above, the corporate defendant's failure to comply
with the rules supports the entry of default under Rule 55
(a) Fed.R.Civ.P. and likewise the entry of default judgment
under Rule 55(b). Therefore, the undersigned recommends that
the motion for default ...