United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. KOLAR MAGISTRATE JUDGE.
matter is before the Court on Defendant's Motion for
Default Judgment Against Plaintiff, Stephanie Williams [DE
28], filed by Defendant/Counter Claimant L&L Cartage
Services, Inc. on April 10, 2019.
April 11, 2017, Plaintiffs Stephanie Williams and Caltaun
Hamilton by counsel filed a Complaint against Defendants
L&L Cartage Services, Inc. and James H. Kessler.
Plaintiff Stephanie Williams alleges a claim of negligence
based on a vehicle collision on January 21, 2017, between the
automobile that Plaintiff Stephanie Williams was driving and
the tractor-trailer Defendant James H. Kessler was driving as
an employee of Defendant L&L Cartage Services, Inc.
Plaintiff Caltaun Hamilton alleges a claim of loss of
consortium. Defendants filed an Answer on July 26, 2017. With
leave of Court, on June 25, 2018, Defendants filed an Amended
Answer to allege a non-party defense against Four Corners Bar
and Grill LLC, the Elbow Room, and Mr. B's Elbow Room.
19, 2018, Counsel for Plaintiffs moved to withdraw his
appearance in this case, and the Court granted the motion on
July 20, 2018. On August 20, 2018, the Court held a
telephonic status conference to inquire into Plaintiffs'
intent to retain new counsel. Plaintiffs advised that they
were seeking new counsel and requested an extension of the
discovery deadline to September 10, 2018. The Court extended
the discovery deadline to November 16, 2018. No attorney has
entered an appearance on behalf of Plaintiffs. Thus,
Plaintiffs Stephanie Williams and Caltaun Hamilton are now
proceeding pro se.
January 18, 2019, Defendants filed a motion for leave to file
a second amended answer and Defendant L&L Cartage
Services, Inc. sought leave to file a counterclaim against
Plaintiff Stephanie Williams. The Court granted the unopposed
motion. On February 8, 2019, Defendants filed a Second
Amended Answer, and Defendant/Counter Claimant L&L
Cartage Services, Inc. filed a Counterclaim against Plaintiff
Stephanie Williams. In the Counterclaim, L&L Cartage
Services, Inc. brings claims of negligence and negligence per
se, alleging that Stephanie Williams was operating her
vehicle under the influence of alcohol and in a drunken state
at all times relevant to the January 21, 2017 vehicle
collision with L&L Cartage Services, Inc.'s
tractor-trailer driven by Defendant Kessler.
to the Court's docket, Plaintiff Stephanie Williams has
not responded to the Counterclaim. As a result, L&L
Cartage Services, Inc. now asks the Court to enter default
judgment on its Counterclaim.
are two stages in a default proceeding: the establishment of
the default, and the actual entry of a default
judgment.” VLM Food Trading Int'l, Inc. v. Ill.
Trading Co., 811 F.3d 247, 255 (7th Cir. 2016). An entry
of default under Federal Rule of Civil Procedure 55(a)
establishes the defaulted party's liability on the
defaulted claims. See id.; Fed.R.Civ.P. 55(a). An
entry of default judgment under Federal Rule of Civil
Procedure 55(b) establishes the opposing party's rights
against the defaulted party. VLM Food Trading, 811
F.3d at 355; Fed. R. Civ. 55(b). “[E]ntry of default
may be made by either the clerk of the judge.”
Roberts v. MacAllister Mach. Co. Inc., No.
1:17-CV-2770, 2017 WL 5991852, at *2 (S.D. Ind. Dec. 1, 2017)
(quoting Virgin Records Am., Inc. v. Johnson, 441
F.Supp.2d 963, 965 (N.D. Ind. 2006)).
effect of the entry of default under Rule 55(a) is that
“[u]pon default, the well-pleaded allegations of a
complaint relating to liability are taken as true.”
VLM Food Trading, 811 F.3d at 255 (quoting
Dundee Cement Co. v. Howard Pipe & Concrete Prods.,
Inc., 722 F.2d 1319, 1323 (7th Cir. 1983)). Although
Counter Claimant L&L Cartage Services, Inc. does not
specifically move for an entry of default under Rule 55(a),
the Court nevertheless construes the instant motion as asking
for both an entry of default under Rule 55(a) as well as
default judgment under Rule 55(b); L&L Cartage Services,
Inc. cites Rule 55(a) in its motion and asserts facts to show
that Stephanie Williams has not responded to the
Rule of Civil procedure 55(a) provides: “When 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). A party who
moves for entry of default under Rule 55(a) “has the
burden of showing that service of process was property
effected consistent with Rule 4 of the Federal Rules of Civil
Procedure.” Wold v. Robart, No. 17-CV-252,
2018 WL 1135396, at *2 (E.D. Wis. Feb. 28, 2018) (quoting
Geraci v. Everhart, Case No. 09-C-433, 2009 WL
3446193, at *2 (E.D. Wis., Oct. 23, 2009)). “If the
moving party is unable to show proper service or that proper
service was waived, the party should not be granted entry of
default.” Grand Chute Holdings, LLC v. Wild Truffle
Artisan Pizzeria, No. 17-C-665, 2017 WL 5991742, at *1
(E.D. Wis. Dec. 4, 2017) (quoting Geraci, 2009 WL
3446193, at *2); see also Trade Well Int'l v. United
Central Bank, 825 F.3d 854, 859 (7th Cir. 2016)
(“[A] judgment is void if it was rendered ‘in a
manner inconsistent with due process of law.'”
(quoting United States v. Indoor Cultivation Equip. from
High Tech Indoor Garden Supply, 55 F.3d 1311, 1316 (7th
case, Counter Claimant L&L Cartage Services, Inc. has the
burden of showing that Counter Defendant Stephanie Williams
was served with the Counterclaim under Federal Rule of Civil
Procedure 5, not Rule 4. Federal Rule of Civil Procedure
5(a)(1)(B) provides that “a pleading filed
after the original complaint” must be served
on every party. Fed.R.Civ.P. 5(a)(1)(B) (emphasis added).
Rule 5(b)(2) governs how service is made, which includes
mailing the pleading to the person's last known address.
instant motion, Counter Claimant L&L Cartage Services,
Inc. does not offer an affidavit or otherwise show that
Counter Defendant Stephanie Williams was served with the
Counterclaim in this case. L&L Cartage Services, Inc.
does not offer any facts regarding the service of the
Counterclaim on Stephanie Williams.
the Court hereby DENIES without prejudice
Defendant's Motion for Default Judgment Against
Plaintiff, Stephanie Williams [DE 28]. Counter Claimant
L&L Cartage Services, Inc. is granted leave to refile a
Rule 55(a) motion for entry of default, making the necessary
showing of service of the Counterclaim on Stephanie Williams.
If an entry of default is entered, Counter Claimant L&L
Cartage Services may file, if appropriate, a Rule 55(b)
motion for default judgment.
light of this motion and Defendants' Motion to Dismiss
for Failure to Prosecute, also filed on April 10, 2019, the
Court hereby ...