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).
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.