UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CHARLES F. LONGNECKER, II, 

 Plaintiff, Civil Action No. 15-11705 

 Honorable John Corbett O’Meara 

 v. Magistrate Judge David R. Grand 

 

COMMISSIONER OF 

SOCIAL SECURITY, 

 

 Defendant. 

__________________________________/ 

REPORT AND RECOMMENDATION TO DENY 

PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT [10] 

Background 

In this action, Plaintiff Charles F. Longnecker, II, seeks judicial review of the 

Commissioner’s final decision that he was not disabled and was therefore not entitled to 

disability insurance benefits under the Social Security Act. Longnecker filed his pro se

complaint [1] on May 12, 2015, and on May 21, 2015, he was granted permission to proceed in 

forma pauperis. [5]. Also on May 21, 2015, the Court ordered the Marshals Office to serve a 

summons and complaint on the Commissioner. [Id.]. On May 27, 2015, the Clerk’s Office 

issued a summons, and the Marshals Office acknowledged its receipt of the service of process 

documents. [6, 7]. However, no proof of service has been filed, so it is unclear when service 

was actually accomplished on the Commissioner. Indeed, the very next entry on the docket, on 

August 3, 2015, is a motion to dismiss filed by the Commissioner. [8]. 

Although Longnecker has filed a response to the Commissioner’s motion [12], on August 

21, 2015, he filed the instant motion for default judgment, arguing that, “[o]n May 21, 2015 a 

summons was issued with complaint on [the Commissioner] and a certificate of service was 

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served on all parties of interest. [The Commissioner] failed to serve Plaintiff an answer in a 

timely manner as prescribed by Fed. R. Civ. P. 12(2).” [10 at 3]. After reviewing Longnecker’s 

motion and the docket, the Court concludes that it does not require additional briefing to make a 

recommendation on Longnecker’s motion. 

Analysis 

 Longnecker's motion for default judgment is procedurally and substantively improper. 

First, the law is clear that the entry of a default under Fed. R. Civ. P. 55(a) is a prerequisite to 

entry of a default judgment under Fed. R. Civ. P. 55(b). See Lewis v. Detroit Pub. Sch., 2013 WL 

5785777, at *2 (E.D. Mich. May 6, 2013); Colston v. Cramer, 2008 WL 559579, at *2 (E.D. 

Mich. Feb. 26, 2008) (noting that the court follows “the majority of courts” holding that Rule 55 

“requires a clerk’s entry of default before a court can enter a default judgment.”). Here, no entry 

of default has been made against the Commissioner, and thus it would be inappropriate to grant 

his motion for default judgment. 

Second, Longnecker has not shown that the entry of a default, let alone a default 

judgment, would be proper in this case. Pursuant to Rule 55(a), the clerk may enter a party’s 

default only “[w]hen 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 ....” Here, 

Longnecker is mistaken as to the significance of the various docket entries discussed above. 

As of May 21, 2015, the Commissioner had not appeared in the action, and thus nothing 

was served upon the Commissioner at that time. Rather, the May 21, 2015 docket entry is this 

Court’s Order directing “that summonses be issued [by the Clerk’s Office] and the complaint and 

summons be served on [the Commissioner]” by the Marshal’s Office, not that such service 

actually occurred on that date. [5 at 2]. In fact, the summons was not actually issued until May 

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27, 2015. [7]. And, as noted above, while the Marshal’s Office acknowledged receipt of the 

service documents that same day [6], the docket does not reflect the date upon which the 

documents were actually served on the Commissioner. 

Pursuant to Fed. R. Civ. P. 12(a)(2), the Commissioner had 60 days from the service date 

to answer or otherwise respond to Longnecker's motion. Because Longnecker has not shown 

that the Commissioner’s August 3, 2015 motion to dismiss [8] was filed more than 60 days after 

it was actually served with the summons and complaint, Longnecker has not shown entitlement 

to a default, let alone a default judgment. 

Conclusion 

 For the foregoing reasons, the Court RECOMMENDS that Longnecker’s motion for 

default judgment [10] be DENIED. 

Dated: August 28, 2015 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

NOTICE TO THE PARTIES REGARDING OBJECTIONS 

Within 14 days after being served with a copy of this Report and Recommendation and 

Order, any party may serve and file specific written objections to the proposed findings and 

recommendations and the order set forth above. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 

72(b)(2); E.D. Mich. LR 72.1(d)(1). Failure to timely file objections constitutes a waiver of any 

further right of appeal. See Thomas v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 

F.3d 976, 984 (6th Cir. 2005). Only specific objections to this Report and Recommendation will 

be preserved for the Court’s appellate review; raising some objections but not others will not 

preserve all objections a party may have. See Smith v. Detroit Fed’n of Teachers Local 231, 829 

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F.2d 1370, 1373 (6th Cir. 1987); see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th 

Cir. 2006). Copies of any objections must be served upon the Magistrate Judge. See E.D. Mich. 

LR 72.1(d)(2). 

A party may respond to another party’s objections within 14 days after being served with 

a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be 

concise, and should address specifically, and in the same order raised, each issue presented in the 

objections. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on August 28, 2015. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager

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