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Mears v. Board of Education of Sterling Regional High School District

United States District Court, Third Circuit

November 26, 2013

ERVIN MEARS, JR. INDIVIDUALLY AND ON BEHALF MINOR CHILD M.M. Plaintiffs,
v.
BOARD OF EDUCATION OF THE STERLING REGIONAL HIGH SCHOOL DISTRICT, et al., Defendants.

ERVIN MEARS, JR., LAWNSIDE, NJ, Pro Se Plaintiff,

BRETT E. J. GORMAN PARKER MCCAY PA MT. LAUREL, N.J. Attorney for Defendants.

ORDER

NOEL L. HILLMAN, District Judge.

Before the Court is plaintiffs' motion for default judgment for defendants' failure to answer, and it appearing that:

1. Pursuant to Rule 55, obtaining a default judgment is a two-step process. First, when a defendant has failed to plead or otherwise respond, a plaintiff may request the entry of default by the Clerk of the Court. See Fed.R.Civ.P. 55(a). Second, after the Clerk has entered the party's default, a plaintiff may then obtain a judgment by default by either:

(1) asking the Clerk to enter judgment, if the judgment is a sum certain, or (2) by applying to the Court. See Fed.R.Civ.P. 55(b);

2. "It is the accepted practice in this Circuit and in the Federal Court System generally that a party must request and receive an entry of default from the Clerk prior to moving for default judgment before the Court." Graise v. Marie, No. 12-05232, 2013 WL 1155281, at *2 (D.N.J. Mar. 20, 2013);

3. Here, plaintiffs did not complete step one - request for a Clerk's entry of default - prior to filing a motion for default judgment, and therefore, their motion is not properly filed;

4. Moreover, on June 17, 2013, defendants filed a motion to dismiss the complaint;[1]see Fed.R.Civ.P. 12(b);

5. Therefore, even if plaintiffs properly filed a Clerk's entry of default prior to filing their motion for default judgment, a default judgment would not have been entered because defendants did file a responsive pleading to the complaint in the form of a motion to dismiss;[2] see Prall v. Ellis, No. 10-1228, 2012 WL 4490729, at *3 (D.N.J. Sept. 27, 2012) (rendering plaintiff's request for entry of default moot where defendants answered one week late because "generally speaking, no prejudice is caused by the filing of an answer within 14 days after the due date.").

Therefore, on this 26th day of November, 2013, it is

ORDERED that plaintiff's motion for default judgment [6] is DENIED WITHOUT PREJUDICE.


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