UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION
KELVIN LOVETT, Case No. 1:17-cv-757
Plaintiff, Black, J.

Litkovitz, M.J.
vs.

JEREMY EACHES, et al., REPORT AND
Defendants. RECOMMENDATION

Plaintiff, an inmate at the Toledo Correctional Institution, brings this pro se action under
42 U.S.C. § 1983 alleging violations of his civil rights while he was incarcerated at the Southern
Ohio Correctional Facility (SOCF). Plaintiff brings claims against C/O Robertson, Jeremy
Eaches, C/O Fri, C/O Cooper, Sgt. J. Chinn and two John Doe defendants. This matter is before
the Court on plaintiff's motion for default judgment against all defendants. (Doc. 11).

Plaintiff filed his motion for default judgment on February 23, 2018. Plaintiff asserts that
the Court ordered the United States Marshal to serve defendants with the summons and
complaint on January 5, 2018 (Doc. 6); service likely was perfected as of the date of his motion,
which was 52 days after the Court’s Order; and defendants Eaches, Fri, Cooper, Robertson and
Chinn had not filed an answer or other defense as of the date plaintiff filed the motion. Plaintiff
also alleges that he applied to the Court for an entry of default, and defendants have not taken
any action in the case since that time.

Obtaining a default judgment is a two-step process governed by Fed. R. Civ. P. 55. First,
under Rule 55(a), “[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, the clerk
must enter the party’s default.” Fed. R. Civ. P. 55(a). After the clerk enters the party’s default,
the plaintiff must move the court for a default judgment under Rule 55(b)(2).

Plaintiff is not entitled to default judgment against defendants under Rule 55. First,


plaintiff has not completed the first step under Rule 55(a) by obtaining an entry of default by the
clerk. See Heard v. Caruso, 351 F. App’x 1, 15-16 (6th Cir. 2009) (before a party obtains a
default judgment under Rule 55(b)(1) or (b)(2), there must be an entry of default by the clerk
under Rule 55(a)) (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 2682, at 13 (3d ed. 1998)).

Further, plaintiff is not entitled to a default judgment because defendants have not failed
to plead or otherwise defend this case. Summons were returned unexecuted as to defendant
Robertson with a letter from the Ohio Department of Rehabilitation and Correction stating that
Robertson was not currently an employee of SOCF. (Doc. 17). Robertson has not yet been
served, and the time for him to file an answer or other response to the complaint has not started
torun. See Fed. R. Civ. P. 12(a)(1)(A)(i) (a defendant must serve his answer “within 21 days
after being served with the summons and complaint”). Robertson therefore is not in default.
Defendants Eaches, Fri, Cooper and Chinn were served with process on March 7, 2018. (Doc.
18). Counsel for these defendants entered an appearance on March 27, 2018 (Doc. 13), and
defendants timely filed a motion for extension of time to answer or otherwise respond to the
complaint the following day. (Doc. 14). The Court granted defendants’ motion and gave
defendants until April 18, 2018 to file an answer or otherwise respond to the complaint. (See
Doe. 15). These defendants have demonstrated their intent to defend this action, and default
judgment should not be entered against them.

IT IS THEREFORE RECOMMENDED THAT:

Plaintiff's motion for default judgment (Doc. 11) be DENIED.

pac: 4/198 Zhist oo Xethoe
aren L. Litkovitz

United States Magistrate Judge


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION
KELVIN LOVETT, Case No. 1:17-cv-757
Plaintiff, Black, J.

Litkovitz, M.J.
vs.

JEREMY EACHES, et al.,
Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).