TORRES
v.
ZINGALE
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The court denied the plaintiff's motion for default judgment because it was premature and procedurally deficient.
The plaintiff, appearing pro se, filed a motion for default judgment against several defendants. The plaintiff had not yet obtained a Clerk's default.…
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948-Orl-22DAB, 2012 WL 12904224, at *1 (M.D. Fla. Sept. 28, 2012), report and recommendation adopted, 2012 WL 12904225 (M.D. Fla. Oct. 4, 2012) (citation and quotation marks omitted) (“[T]he clerk’s entry of default must precede an application for default judgment.”). See also Doc. No. 39. To the extent that the motion could be construed as a request for Clerk’s default under Rule 55(a), the motion is also due to be denied without prejudice. Rule 55(a) provides, “[w]hen 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, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). Before a Clerk’s default can be entered against a defendant, however, the
Court must determine that the defendant was properly served. See, e.g., United States v. Donald, No. 3:09-cv-147-J-32HTS, 2009 WL 1810357, at *1 (M.D. Fla. June 24, 2009) (citations omitted). Here, Plaintiffs motion fails to comply with Local Rule 3.01(a) because it does not include a memorandum of legal authority in support. See Doc. No. 43. Relatedly, while Plaintiff has provided what he claims is proof of service (Doc. No. 42-1; Doc. No. 42-2), the present motion also fails to address whether service of process on each of the Defendants was proper. See id. Accordingly, [...] Motion (Doc. No. 43) is DENIED without prejudice. A renewed motion for Clerk’s default, which shall be filed on or before February 24, 2023, must address service of process on each of the Defendants against which Plaintiff seeks default, and establish, with citation to legal authority, that service of process as to each of these Defendants was proper. Failure to comply with this Order may result in the dismissal of these Defendants from the case without further notice. See also Doc. No. 39. DONE and ORDERED in Orlando, Florida on February 10, 2023.
LESLIE NOFFMAN PRICE
UNITED STATES MAGISTRATE JUDGE
Copies furnished to: Counsel of Record Unrepresented Parties