UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOSEPH DUNBAR,

Plaintiff, No. 15-11573

v. District Judge Denise Page Hood

Magistrate Judge R. Steven Whalen

DANIEL HEYNS, ET AL.,

Defendants.

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REPORT AND RECOMMENDATION

Plaintiff, a prison inmate in the custody of the Michigan Department of

Corrections (“MDOC”) has filed a pro se civil complaint alleging numerous claims under

42 U.S.C. § 1983. Before the Court is his Motion for Default Judgment as to Defendants

Meier, Rozen, Upper, and Woldhuis [Doc. #57], which has been referred for a Report and

Recommendation under 28 U.S.C. § 636(b)(1)(B). I recommend that the motion be

DENIED.

I. FACTS

On July 12, 2017, this Court entered an order of partial summary dismissal [Doc.

#47], and ordered service by the U.S. Marshal on Defendants Meier, Rozen, Upper, and

Woldhuis. On August 31, 2017, Plaintiff requested a Clerk’s entry of default as to these

Defendants [Doc. #55 and #56]. The Clerk denied those requests [Doc. #58 and #59]. On

September 28, 2017, executed waivers of service were returned by Upper, Meier, and

Woldhuis [Doc. #s 63, 64, 65]. Defendant Rozen has not yet been served.

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II. STANDARD OF REVIEW

In order for a Plaintiff to obtain a judgment by default, he must first request a

Clerk’s entry of default pursuant to Fed.R.Civ.P. 55(a). A default judgment is governed

by Rule 55(b)(2). “An entry of default and a default judgment are distinct concepts which

must be treated separately.” Northland Ins. Co. v. Cailu Title Corp., 204 F.R.D. 327, 330

(W.D.Mich.2000) (quoting United States v. Topeka Livestock Auction, Inc., 392 F.Supp.

944, 950 (N.D.Ind.1975)). In Vongrabe v. Sprint PCS, 312 F.Supp.2d 1313, 1318

(S.D.Cal.2004), the court explained:

“The section of the rule regarding default is dealt with in Rule 55(a), and

the section of the rule regarding judgment is dealt with in Rule 55(b). These

sections have separate headings and procedures that are distinct from one

another. Thus, a plain reading of Rule 55 demonstrates that entry of default

by the clerk is a prerequisite to an entry of default judgment.”

See also Ramada Franchise Sys., Inc., 220 F.R.D. 303, 305 (N.D.Ohio 2004)

(quoting Sys. Indus., Inc. v. Han, 105 F.R.D. 72, 74 (E.D.Penn.1985)) (“Entry of a default

... is a prerequisite to entry of a default judgment under Rule 55(b).”); DeTore v. Local #

245 of the Jersey City Public Employees Union, 511 F.Supp. 171, 176 (D.N.J.1981)

(“However, no default judgment may be entered under either F.R.Civ.P. 55(b)(1) or (b)(2)

unless a default has previously been entered by the clerk under 55(a). Thus, the entry of

default is an essential predicate to any default judgment.”).

III. DISCUSSION

In this case, the Clerk has not entered of default under Rule 55(a), and indeed has

denied Plaintiff’s requests to do so. Therefore, Plaintiff is not entitled to a default

judgment under Rule 55(b).

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In addition, the time for Defendants Upper, Meier, and Woldhuis to answer has not

expired, and Defendant Rozen has not been served, so a request for default or default

judgment is premature. Plaintiff’s motion is without merit.

IV. CONCLUSION

For these reasons, I recommend that Plaintiff’s motion for default judgment [Doc.

#57] be DENIED.

Any objections to this Report and Recommendation must be filed within 14 days

of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR

72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v.

Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v. Walters, 638 F.2d 947 th

(6 Cir. 1981). Filing of objections which raise some issues but fail to raise others with th

specificity will not preserve all the objections a party might have to this Report and

Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6 Cir. 1991); Smith v. th

Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6 Cir. 1987). Pursuant to th

E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate

Judge.

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Within 14 days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than 20 pages in

length unless by motion and order such page limit is extended by the court. The response

shall address specifically, and in the same order raised, each issue

contained within the objections. 

s/ R. Steven Whalen

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: October 6, 2017

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record

on October 6, 2017, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla

Case Manager to the

Honorable R. Steven Whalen

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