United States District Court, S.D. Georgia, Brunswick Division
LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT.
the Court is Plaintiff Robbie Dotson's Motion for Default
Judgment. Dkt. No. 40. This Motion has been fully briefed and
is ripe for review. For the reasons set forth below,
Plaintiff's Motion is DENIED.
December 31, 2018, Plaintiff filed a Complaint in the
Magistrate Court of Glynn County seeking damages for alleged
violations of the Telephone Consumer Protection Act in an
amount not less than $14, 800, punitive damages, and
attorney's fees. Dkt. No. 1-1. On February 13, 2019,
Defendant filed a notice of removal to this Court. Dkt. No.
the removal of the case, the clerk's office mailed notice
of the removal to Plaintiff's counsel, which included a
notification that "PLAINTIFF'S COUNSEL
INTENDING TO APPEAR IN THE REFERENCED MATTER
MUST ENTER A NOTICE OF APPEARANCE OR A MOTION FOR ADMISSION
PRO HAC VICE NO LATER THAN TEN (10) DAYS AFTER THE ISSUANCE
OF THIS NOTICE." Dkt. No. 2. On February 18,
2019, Defendant filed a Motion to Dismiss Plaintiff's
Complaint. Dkt. No. 6. On February 27, 2019, the clerk sent a
notice of filing deficiency to Plaintiff's counsel, for
failure to enter a notice of appearance in the case within
ten days of the notice of removal. Dkt. No. 13. A week later,
on March 6, 2019, the attorney filed a notice of appearance
on behalf of Plaintiff. Dkt. No. 14. Over three weeks after
that, on March 29, 2019, Defendant filed a Motion for Oral
Argument requesting oral argument because "no response
to DISH's Motion appears in the record, and the Complaint
does not suggest any grounds upon which Plaintiff would
challenge DISH's Motion." Dkt. No. 15. On April 2,
2019, Defendant indicated to the Court in an Amended
Certificate of Service that "[o]n March 29, 2019,
counsel for Plaintiff informed attorneys for Defendant that
he had not received the [Motion to Dismiss] (Doc. No. 6)
through the CM/ECF system." Dkt. No. 16. Counsel for
Defendant then certified that as of that day, he sent a copy
of the motion to Plaintiff's counsel via mail.
April 12, 2019, over a month after the deadline to respond
had passed, Plaintiff filed a response to Defendant's
Motion to Dismiss, dkt. no. 18, and a Motion to Amend his
Complaint, dkt. no. 19. However, Plaintiff gave no
explanation for his failure to timely enter a notice of
appearance or respond to Defendant's Motion to Dismiss.
Plaintiff's timeliness problems, the Court nonetheless
gave Plaintiff leave to amend his complaint, dkt. nos. 1-1,
24, and on May 14, 2019, the Magistrate Judge ordered the
clerk to docket Plaintiff's Amended Complaint, dkt. no.
25. In response to Plaintiff filing his Amended Complaint,
Defendant filed a Partial Motion to Dismiss, dkt. no. 29, on
May 20, 2019, requesting that Plaintiff's prayer for
attorney's fees be dismissed pursuant to Federal Rule of
Civil Procedure 12(b)(6). Dkt. No. 29. The Court denied
Defendant's Partial Motion to Dismiss on June 25, 2019.
Dkt. No. 38.
days later on June 27, 2019, Plaintiff filed a Motion for
Default Judgment, dkt. no. 40, arguing that Defendant failed
to timely file an answer to Plaintiff's Amended Complaint
because its Partial Motion to Dismiss, dkt. no. 29, did not
toll the time to file a responsive pleading in accordance
with Federal Rule of Civil Procedure 12.
initial matter, the Court notes the irony in Plaintiff's
attempt to win a default judgment based on a timeliness
argument. As noted in this Court's prior Order, dkt. no
22 at 4-5, Plaintiff s counsel has repeatedly had
difficulties in meeting filing deadlines. See Smith v.
Roundtree, 2:15-cv-4, Dkt. 27 at 3-4 (July 28, 2015)
(collecting cases). Moreover, after Plaintiff's counsel
failed to timely appear in this case and also failed to file
a timely response to Defendant's Motion to Dismiss, the
Court nonetheless gave Plaintiff leave to amend his
complaint. Now, Plaintiff jumps the gun and seeks not an
entry of default (a prerequisite to a default judgment) but a
default judgment itself on the basis that Defendant failed to
timely answer Plaintiff's Amended Complaint. Although, as
explained below, . Plaintiff's default judgment argument
is procedurally improper and without merit, even if it were
proper and had merit, based on Plaintiff's failure to
meet deadlines in this case, the Court, in its discretion,
would deny Plaintiff's motion for default judgment.
See C & M Inv. Grp., Ltd. v. Campbell, 448
Fed.Appx. 902, 906 (11th Cir. 2011) ("The entry of a
default judgment is committed to the discretion of the
district court." (quoting Hamm v. DeKalb Cnty.,
774 F.2d 1567, 1576 (11th Cir. 1985)); see also King v.
Marcy, No. 2:17-CV-112, 2019 WL 691782, at *8 (S.D. Ga.
Feb. 19, 2019) (finding that the plaintiff's motion for
default judgment to be "in vain" and that the
plaintiff's arguments supporting default judgment carried
"patent irony" where the plaintiff's counsel,
had "brazenly disregarded" the Federal Rules of
Civil Procedure and the court's orders without making
"any effort to show . . . good cause" for the
Plaintiff's Motion for Default Judgment fails to follow
the proper procedure required by Federal Rule of Civil
Procedure 55. Rule 55 allows a party to seek an entry of
default and, subsequently, a default judgment against another
party who has failed to plead or otherwise defend a lawsuit.
See Fed.R.Civ.P. 55(a). Securing a default judgment
is thus a two-step process. "First, the party seeking a
default judgment must file [an application] for entry of
default with the clerk of a district court by demonstrating
that the opposing party has failed to answer or otherwise
respond to the complaint, and, second, once the clerk has
entered a default, the moving party may then seek entry of a
default judgment against the defaulting party."
Gladden v. Homewood Florist, Inc., No.
2:09-CV-01547-HGD, 2011 WL 13286008, at *1 (N.D. Ala. July 6,
2011) (alteration in original) (citations omitted); see
also Bank of Am., N.A. v. Harris, No.
1:17-CV-1201-CAP-JSA, 2017 WL 8186606, at *3 (N.D.Ga. Nov.
30, 2017), report and recommendation adopted, No.
1:17-CV-1201-CAP, 2017 WL 8186601 (N.D.Ga. Dec. 20, 2017)
(describing the "two-step procedure for obtaining a
default judgment"). "The law is clear that these
are separate steps that cannot be combined into one."
Gladden, 2011 WL 13286008, at *1. In other words,
Rule 55 "requires that an entry of default precede an
entry of default judgment." N. Augusta Mgmt. Grp.,
LLC v. Sw. Golf Grp., Inc., No. CV 110-061, 2011 WL
3273536, at *3 (S.D. Ga. July 8, 2011), report and
recommendation adopted, No. CV 110-061, 2011 WL 3269321
(S.D. Ga. July 29, 2011); see also Sun v. United
States, 342 F.Supp.2d 1120, 1124 n.2 (N.D.Ga. 2004)
(describing obtaining an entry of default as "a
prerequisite to a default judgment").
Plaintiff filed what he titled "Plaintiff's Motion
for Default or for a Default Judgment" asking for
"the entry of Default by the Clerk, or alternatively, a
Judgment of Default as to the liability of the Defendant
because of the failure of the Defendant to file a timely
answer." Dkt. No. 40. As explained above, the
clerk's entry of default and a default judgment are two
separate requirements "that cannot be combined into
one." Gladden, 2011 WL 13286008, at *1. Until
the clerk has entered a clerk's entry of default,
Plaintiff cannot file a motion for default judgment, but
here, Plaintiff attempts to ...