United States District Court, W.D. Missouri, Western Division
JERALD S. ENSLEIN, in his capacity as Chapter 7 Trustee for Xurex, Inc., Plaintiff,
GIACOMO E. DI MASE, et al., Defendants.
ORDER AND OPINION (1) DENYING PLAINTIFF'S
APPLICATION FOR DEFAULT AGAINST DEFENDANT JENSVOLD, (2)
DENYING PLAINTIFF'S APPLICATION FOR DEFAULT AGAINST
DEFENDANT JOHNSTON, AND (3) CLARIFYING THE COURT'S
SEPTEMBER 16, 2019 ORDER
D. SMITH, UNITED STATES DISTRICT COURT SENIOR JUDGE
are Plaintiff's Application for Default Against Defendant
Tristram Jensvold (Doc. #509) and Plaintiff's Application
for Default Against Defendant Joe Johnston (Doc. #537). For
the following reasons, the Court denies Plaintiff's
motions and further clarifies its September 16, 2019 Order
PLAINTIFF'S APPLICATION FOR DEFAULT AGAINST
filed his Complaint in August 2016, alleging claims against
Tristram Jensvold and several others. A return of service
indicated Jensvold's father accepted service for Jensvold
in January 2017. Doc. #12-5, at 2. On May 4, 2017, Plaintiff
moved for default against Jensvold. Doc. #11-12. After
Jensvold failed to respond to the motion, the Court ordered
him to show cause why Plaintiff's motion should not be
granted. Doc. #18. On May 30, 2017, Jensvold asked the Court
to dismiss Plaintiff's request for entry of default,
arguing he had not been personally served. Doc. #23.
29, 2017, the Court found service of process was not proper
based on the record before it but also determined
Jensvold's conduct was “evasive and
misleading.” Doc. #34. The Court granted Plaintiff
additional time to serve Jensvold. Id.; see
also Docs. #69, 93, 116. On November 16, 2017, Jensvold
was personally served. Doc. #122. Jensvold did not file an
answer or respond to Plaintiff's Complaint.
December 14, 2017, the Court noted Jensvold failed to timely
respond to the Complaint and “[t]he Record reflects
Defendant Jensvold is in default.” Doc. #130. The Court
directed Jensvold to show cause why default should not be
entered against him. Id. The Court forewarned
Jensvold that if he did not comply with the Order, a judgment
may be entered against him without further notice.
Id. Jensvold did not respond to the Court's
August 15, 2018, Plaintiff filed his Amended Complaint. Doc.
#244. The Amended Complaint included one new claim against
Jensvold - aiding and abetting breach of fiduciary duty -
that was not asserted in the initial Complaint. Doc. #1-2;
Doc. #244; Doc. #509, at 3. Plaintiff did not serve the
Amended Complaint on Jensvold. Doc. #509, at 3-4.
now asks the Court to default judgment against Jensvold on
the claims alleged in the initial Complaint, or
alternatively, recognize Jensvold remains in default with the
amount to be determined at trial or other hearing in this
matter. Id. at 5. The Court directed Jensvold to
respond to Plaintiff's motion. Doc. #512. Jensvold never
of the Federal Rules of Civil Procedure provides, in
pertinent part, as follows:
(a) Entering a Default. 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.
(b) Entering a Default Judgment.
(1) By the Clerk. If the plaintiff's claim is
for a sum certain or a sum that can be made certain by
computation, the clerk-on the plaintiff's request, with
an affidavit showing the amount due-must enter judgment for
that amount and costs against a defendant who has been
defaulted for not appearing and who is neither a minor nor an
(2) By the Court. In all other cases, the party must
apply to the court for a default judgment…. The court
may conduct hearings…when, to enter or effectuate
judgment, it needs to:…(B) determine the amount of
Fed. R. Civ. P. 55(a)-(b). Entry of default under Rule 55(a)
must precede entry of default judgment under Rule 55(b).
See Johnson v. Dayton Elec. Mfg. Co.,140 F.3d 781,
783 (8th Cir.1998). Entry of default under Rule 55(a) is not
an entry of a judgment; “it merely permits the
plaintiff to move for a default judgment under Rule
55(b)(2)….” Inman v. Am. Home Furniture
Placement, Inc., 120 F.3d 117, 118 n.2 (8th Cir. 1997).
In addition, “a default judgment cannot be entered
until the amount of damages has been ascertained.”
Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d
1040, 1042 (8th Cir. 2000) (citation omitted). As another
court explained, Rule 55 “requires two steps before
entry of a default judgment”: (1) the party has the
clerk enter the default by submitting the necessary proof
establishing the opposing party failed ...