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Enslein v. Di Mase

United States District Court, W.D. Missouri, Western Division

November 1, 2019

JERALD S. ENSLEIN, in his capacity as Chapter 7 Trustee for Xurex, Inc., Plaintiff,
v.
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

          ORTRIE D. SMITH, UNITED STATES DISTRICT COURT SENIOR JUDGE

         Pending 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 (Doc. #516).

         I. PLAINTIFF'S APPLICATION FOR DEFAULT AGAINST JENSVOLD

         Plaintiff 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.

         On June 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.

         On 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 Order.

         On 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.

         Plaintiff 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 responded.

         Rule 55 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 incompetent person.
(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 damages….

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 ...


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