moment.
Posted on 10/21/2008 6:05:29 AM PDT by Calpernia
moment.
F.R.Civ.P. 55 governs the entry of default and default judgment against a party who fails to plead or assert a defense by way of a motion to dismiss:
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default.
(b) Judgment.. Judgment by default may be entered as follows:
(1) By the Clerk. When the plaintiff’s claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person.
(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party’s representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States.
Id.
Although F.R.Civ.P. 55(a) speaks in mandatory terms, the Clerk has some discretion in declining to enter default, where the request does not provide complete information. Dow v. Jones, 232 F.Supp.2d 491, 494 (D.Md. 2002). In that case, a criminally convicted defendant sued his defense attorney for malpractice. The plaintiff served process upon the defendant on June 19, 2002, making a responsive pleading due on July 9, 2002. The defendant filed a motion to dismiss on July 12, 2002. After the Clerk advised that an affidavit in support of a request to enter default filed July 15, 2002 did not recite that the defendant had filed a motion to dismiss, the plaintiff filed a motion seeking to enter default.
In denying the motion seeking to enter default, the court discussed that it has discretion to grant additional time to a party to plead or otherwise defend.” Id. 232 F.Supp.2d at 494, citing 10A Wright, Miller & Kane, Federal Practice And Procedure § 2682 (3d ed.1995). The court additionally focused on, “[T]he judicial preference for a decision on the merits.” Id. citing First Am. Bank, N.A. v. United Equity Corp., 89 F.R.D. 81, 86-87 (D.D.C. 1981). Likewise, the court considered the absence of prejudice to the plaintiff, given that the defendant’s motion to dismiss had been filed only three days late. Id. citing Mason & Hanger-Silas Mason Co., Inc., v. Metal Trades Council of Amarillo, Texas and Vicinity, AFL-CIO, 726 F.2d 166, 168 (5th Cir.1984); Martin v. Delaware Law Sch. of Widener Univ., 625 F.Supp. 1288, 1296 n. 3 (D.Del.1985), aff’d, 884 F.2d 1384 (3d Cir.1989).
How’d you like to wake up in the morning, roll over and see that?
“So a threat of riots voids the Constitution? I don’t think so Tim.”
I didn’t say or imply that at all. If he is ineligible, he is out, plain and simple. I’m just predicting what would happen.
yesterday they could have asked for more time, today they are out of time, they still could ask but likely wouldn’t get more time, and also have then acknowledged they see the requests for admissions which they apparantly do not want to do, I just think it’s a case of the big head
Good point. That did not get a lot (any) coverage by the mainstream media. The next two weeks are going to be exciting.
Judges never just act on their own. In fact, it is quite likely that the judge is completely unaware of the Request For Admissions and the non response.
The appropriate procedure is for Berg to file a Motion For Summary Disposition requesting a judgment based on the admissions.
Does he live here now? When did she move from Indonesia?
Very True.
My nephew was born here in NY his dad is in the Air Force they have moved quite a bit, 16 years later he wants to get his license. Nobody gave any of it a thought until now, the BC was obtained and on it’s way to CO within 2 days.
It’s not hard.
Now we know why he flew to Hawaii so suddenly.
Sick grandmother my butt!!
I think that is the OTHER grandmother, the one in Kenya.
Exactly what I was thinking.
Do we have any FReepers in Hawaii with connections to the hospitals where Mrs. Dunham was likely to have been admitted, to verify NObama’s claims that she’s ill?
Could NObama be traveling to Hawaii to access his records there where he could state, “Well lookie here. I was born in Kenya. My mother always told me I was born in Hawaii. She tricked me. It wasn’t my fault.”??
So, help me out here. Obama isn’t going to Hawaii to see his “ailing” grandmother? He’s going to pick up his Indonesian Passport and flee the 57 United States of America?
Michelle and the girls are US Citizens, so they don’t have to flee?
The Fairy Tale of Barry Dunham Soetoro aka Obama gets stranger and stranger.
WHY have not people who went to Occidental or Columbia or Harvard spoken up? What or who are they afraid of?
Agreed, I won’t believe a thing until it’s all over the TV screen and Internet blogs.
That was a thread, which addressed the title you just responded to:
http://www.freerepublic.com/focus/news/2109876/posts
So, why is it taking so long? What is the judge waiting for? (Berg vs Obama)
Hawaii. Isn’t that just the convenient coincidence happenstance
Ok-Ok. So the research I posted was not so on point. What it does show is a bais toward reaching an adjudication on the merits rather than based upon procedure.
In this case, it will be up to the Plaintiff here to file a motion for summary disposition based upon the discovery default. The hearing ofthis will take a few weeks, so there is no quick decision. Obama then comes and makes arguments in opposition - like the serving of Request for Admissions was not permitted in the Discovery Order - Or the dog ate my homework - and the judge puts you back on track in preparing for trial.
The Court won’t give you one fast and dirty - and especially not in this case.
“Obama and the DNC have to show cause for this admission to be dismissed. Other than that, their goose is cooked.”
There is always a way to delay these things. Look how long it took to get any info out of the KKKlintons. They will drag this out until after inauguration day. Then try removing a sitting President based on what will be called a “technicality” by the RAT/MSM complex. The consequences will be biblical. Human sacrifice, dogs and cats living together, mass hysteria! It would be awesome to watch.
Well, in that case, not only would he not be eligible to run for President, but he'd have to step down as US Senator as well. So, I don't think he will admit that. :O)
He's waiting for the FEC to respond, their's is due today.
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