United States District Court, S.D. Indiana, Indianapolis Division
JANE MAGNUS-STINSON, CHIEF JUDGE
December 7, 2018, Plaintiff Luis Pena filed a Complaint
against Indianapolis Public School Corporation
(“IPS”), E.R. (a minor), and Jorge Ramos
(E.R.'s father), relating to allegations E.R. and Mr.
Ramos made that resulted in IPS investigating Mr. Pena's
conduct and ultimately recommending termination of his
employment with IPS. [Filing No. 1.] Presently
pending before the Court are Mr. Pena's Applications to
Enter a Default Judgment against Jorge Ramos and E.R.
[Filing No. 25; Filing No. 29.] As
explained below, the Court finds that Mr. Pena has not
complied with the two-step process for entering default
judgments, and therefore, the Court DENIES
Mr. Pena's Applications to Enter Default Judgment against
Mr. Ramos and E.R.
pending before the Court is a Motion to Dismiss filed by Mr.
Ramos on his own behalf and on behalf of his daughter, E.R.
[Filing No. 35.] Mr. Ramos and E.R. seek dismissal
of Mr. Pena's claims against them pursuant to Federal
Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction. The Court finds that Mr. Pena's claims
against Mr. Ramos and E.R. fall within the Court's
supplemental jurisdiction. Accordingly, the Court
DENIES Mr. Ramos's and E.R.'s Motion
to Enter Default Judgment
February 27, 2019, Mr. Pena filed an Application to Enter
Default Judgment Against Defendant E.R., A Minor, b/n/f Jorge
Ramos, [Filing No. 18], and an Application to Enter
Default Judgment Against Defendant Jorge Ramos, [Filing
No. 19]. On April 2, 2019, the Court denied without
prejudice these Applications, stating that “[d]efault
is a ‘two step process' that is ‘clearly
outlined' in Rule 55(a) and 55(b) of the Federal Rules of
Civil Procedure, ” and noting that Mr. Pena had not
completed the first step by seeking the entry of default
against Mr. Ramos and E.R. under Rule 55(a). [Filing No.
22 at 2-3; see Fed. R. Civ. P. 55(a)-(b).] The
Court also noted that “Rule 55(b)(2) provides that
‘[a] default judgment may be entered against a minor or
incompetent person only if represented by a general guardian,
conservator, or other like fiduciary who has appeared.'
Accordingly, any subsequent efforts for the Court to enter a
default or default judgment against E.R. must take into
account the foregoing.” [Filing No. 22 at 2.]
April 10, 2019 and May 3, 2019, Mr. Pena filed a second round
of Applications to Enter a Default Judgment against Mr. Ramos
and E.R, which are ripe for the Court's decision.
[Filing No. 25; Filing No. 29].
is a “two-step process” that is “clearly
outlined” in Rule 55(a) and 55(b) of the Federal Rules
of Civil Procedure, with subpart (a) outlining the entry of
default and subpart (b) outlining the entry of default
judgment. VLM Food Trading Int'l, Inc. v. Illinois
Trading Co., 811 F.3d 247, 255 (7th Cir. 2016); see
also10A Charles Alan Wright, Arthur R. Miller, et al.,
Federal Practice and Procedure: Civil 2d § 2682 (2018)
(“Prior to obtaining a default judgment under either
Rule 55(b)(1) or Rule 55(b)(2), there must be an entry of
default as provided by Rule 55(a).”). The distinction
between the two is that the first step, the entry of default,
“does not of itself determine rights.”
Id. at 255 (quoting United States v.
Borchardt, 470 F.2d 257, 260 (7th Cir. 1972)).
“That role is reserved for a default judgment.”
Id. at 255.
second round of Applications to Enter Default Judgment, Mr.
Pena is again seeking the entry of default judgment, not
Clerk's entries of default. [See Filing No. 25;
see also Filing No. 29.] In the Application to Enter
Default Judgment Against Mr. Ramos, Mr. Pena states that as
of April 10, 2019, no attorney had entered an appearance on
Mr. Ramos's behalf, nor had a responsive pleading been
filed for Mr. Ramos. [Filing No. 25 at 1.] In the
Application to Enter Default Judgment Against E.R., Mr. Pena
states that the Court denied his first Application because
E.R. “was not represented by counsel. [E.R.] is now
represented by counsel, (Dkt. 28), and therefore Plaintiff
renews his Application for Default.” [Filing No. 29
renewed Applications to Enter Default Judgment against Mr.
Ramos and E.R., Mr. Pena again misses the mark. Mr. Pena
still attempts to complete the “two-step process”
of default in a single step via his pending motions. As noted
in the Court's previous Order, [Filing No. 22],
Mr. Pena must first seek a Clerk's entry of default
pursuant to Rule 55(a) before he may file a motion for
default judgment pursuant to Rule 55(b)(1). Although the
Court outlined this two-step process in its previous Order,
it appears that Mr. Pena ignored that guidance and
incorrectly determined that the Court's denial of his
original Applications to Enter Default Judgment were based on
E.R.'s status as a minor. The Court denied without
prejudice Mr. Pena's previous applications for default
judgment because he failed to first seek a Clerk's entry
of default. [See Filing No. 22 at 2.] Mr. Pena has
made this same error in his second Applications to Enter
Default Judgment, [Filing No. 25; Filing No.
29], and accordingly, those applications are similarly