United States District Court, E.D. Michigan, Southern Division
J. Michelson District Judge
REPORT AND RECOMMENDATION
STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE
a pro se prison inmate in this civil rights action
brought under 42 U.S.C. §1983, has filed a motion for
default judgment and for sanctions as to Defendants Kenneth
Salisbury and Michele Forde [Doc. #23], which has been
referred for a Report and Recommendation under 28 U.S.C.
§ 636(b)(1)(B). For the reasons discussed below, I
recommend that the motion be DENIED.
Fed.R.Civ.P. 55(b), a judgment by default may be entered
against a defendant who has failed to plead or otherwise
defend against an action. However, default judgment may not
be entered against a defendant who has not been properly
served with a summons and complaint under Fed.R.Civ.P.
4(c)-(h), since the Court would not have personal
jurisdiction over such defendant.
12, 2018, the Court ordered service by the United States
Marshal [Doc. #7], and waivers of service were sent to
Defendants Salisbury and Forde at the Gus Harrison
Correctional Facility. The waivers were returned unexecuted,
with the notations that Salisbury and Forde were no longer
employed by the MDOC [Doc. #17 and #18].
Defendants have not been properly served, and Plaintiff
therefore has no basis to ask for a default judgment. Nor is
there any basis for this Court to sanction Defendants who
have not been served.
in order for a Plaintiff to obtain a judgment by default, he
must first request a Clerk's entry of default pursuant to
Fed.R.Civ.P. 55(a). A default judgment is governed by Rule
55(b)(2). “An entry of default and a default judgment
are distinct concepts which must be treated
separately.” Northland Ins. Co. v. Cailu Title
Corp., 204 F.R.D. 327, 330 (W.D.Mich.2000) (quoting
United States v. Topeka Livestock Auction,
Inc., 392 F.Supp. 944, 950 (N.D.Ind.1975)). In
Vongrabe v. Sprint PCS, 312 F.Supp.2d 1313, 1318
(S.D.Cal.2004), the court explained:
section of the rule regarding default is dealt with in Rule
55(a), and the section of the rule regarding judgment is
dealt with in Rule 55(b). These sections have separate
headings and procedures that are distinct from one another.
Thus, a plain reading of Rule 55 demonstrates that entry of
default by the clerk is a prerequisite to an entry of default
judgment.” See also Ramada Franchise Sys.,
Inc., 220 F.R.D. 303, 305 (N.D.Ohio 2004) (quoting Sys.
Indus., Inc. v. Han, 105 F.R.D. 72, 74 (E.D.Penn.1985))
(“Entry of a default ... is a prerequisite to entry of
a default judgment under Rule 55(b).”); DeTore v.
Local # 245 of the Jersey City Public Employees
Union, 511 F.Supp. 171, 176 (D.N.J.1981)
(“However, no default judgment may be entered under
either F.R.Civ.P. 55(b)(1) or (b)(2) unless a default has
previously been entered by the clerk under 55(a). Thus, the
entry of default is an essential predicate to any default
case, the Clerk has not entered a default under Rule 55(a).
For this reason, apart from the fact that the Defendants have
not been served, Plaintiff is not entitled to a default
judgment under Rule 55(b).
recommend that Plaintiff's motion for default judgment
and for sanctions as to Defendants Kenneth Salisbury and
Michele Forde [Doc. #23] be DENIED.
objections to this Report and Recommendation must be filed
within fourteen (14) days of service of a copy hereof as
provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR
72.1(d)(2). Failure to file specific objections constitutes a
waiver of any further right of appeal. Thomas v.
Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);
Howard v. Secretary of HHS, 932 F.2d 505
(6th Cir. 1991); United States v.
Walters, 638 F.2d 947 (6th Cir. 1981). Filing
of objections which raise some issues but fail to raise
others with specificity will not preserve all the objections
a party might have to this Report and Recommendation.
Willis v. Secretary of HHS, 931 F.2d 390, 401
(6th Cir. 1991); Smith v. Detroit Fed'n of
Teachers Local 231, 829 F.2d 1370, 1373 (6th
Cir. 1987). upon this Magistrate Judge.
fourteen (14) days of service of any objecting party's
timely filed objections, the opposing party may file a
response. The response shall be not more than twenty (20)
pages in length unless by motion and order such page limit is
extended by the court. The response shall address