Report and Recommendation

Motion for Default Judgment/Recommendation of Dismissal 1 Johnson v. Caruso; Case No. 09-10910

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CORIELLE JOHNSON, Case No. 09-10910

 

Plaintiff, Arthur J. Tarnow

vs. United States District Judge

PATRICIA CARUSO, et al., Michael Hluchaniuk

United States Magistrate Judge

Defendants.

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REPORT AND RECOMMENDATION

MOTION FOR DEFAULT JUDGMENT (Dkt. 68) 

RECOMMENDATION OF DISMISSAL OF 

CLAIMS AGAINST DEFENDANTS ACORD AND SELLERS

Plaintiff filed this prisoner civil rights action on March 11, 2009. (Dkt. 1). 

This case was referred to the undersigned on June 20, 2010 for all pretrial

proceedings. (Dkt. 13). Defendants filed motions for summary judgment. (Dkt.

53, 62). The undersigned recommended that these motions for summary judgment

be granted, which recommendation was adopted by the district court. (Dkt. 67,

72). In the report and recommendation, the undersigned concluded that none of

the claims asserted by plaintiff had any merit whatsoever and the district court

agreed. 

On January 5, 2012, the undersigned issued an order for plaintiff to show

cause why the claims against defendants Sellers and Acord should not be
Report and Recommendation

Motion for Default Judgment/Recommendation of Dismissal 2 Johnson v. Caruso; Case No. 09-10910

dismissed for failure to prosecute because Sellers had not been served with the

summons and complaint and Acord had been served, but no further action had

been taken by plaintiff. (Dkt. 66). In that order, the Court warned plaintiff that

“Failure to satisfactorily or timely comply with this order will result in a

recommendation that the action against defendant C. Sellers and Christopher

Acord should be dismissed for lack of prosecution in accordance with Federal

Rule of Civil Procedure 41 and Local Rule 41.2.” (Dkt. 66). 

In his response to the order to show cause, plaintiff indicated that he was

unable to locate any address for defendant Sellers. (Dkt. 69). Plaintiff then filed a

motion for default judgment as to defendant Acord, who had been served with the

summons and complaint, but has never answered or appeared. (Dkt. 68). In the

view of the undersigned, the claims against defendants Acord and Sellers should

be dismissed for the same reasons set forth in the earlier report and

recommendation, given that all of plaintiff’s claims were deemed meritless in their

entirety and nothing in the complaint suggests that the claims against defendants

Acord and Sellers should be analyzed differently. Given this conclusion, the

undersigned need not reach the issue the whether plaintiff’s complaint against

defendant Sellers should be dismissed for failure to prosecute.

In addition, plaintiff’s motion for entry of default judgment should be

denied for the reason that no default has been entered by the Clerk of the Court. 
Report and Recommendation

Motion for Default Judgment/Recommendation of Dismissal 3 Johnson v. Caruso; Case No. 09-10910

“In order to obtain a default judgment against a party who has received service but

failed to appear or plead in a case, the plaintiff must first seek an entry of default

from the Clerk of the Court under Rule 55(a).” Corsetti v. Hackel, 2011 WL

2135184, *1 (E.D. Mich. 2011), citing 10A Charles A. Wright, Arthur Miller, &

Mary Kay Kane, Federal Practice & Procedure § 2682 (“Prior to obtaining a

default judgment under either Rule 55(b)(1) or Rule 55(b)(2), there must be an

entry of default as provided by Rule 55(a).”). Here, no default has entered and

thus, the motion for entry of default judgment should be denied.

For the reasons set forth above, the undersigned RECOMMENDS that

plaintiff’s motion for default judgment be DENIED and that the claims against

defendant Acord and Sellers be DISMISSED with prejudice.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

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

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some

issues but fail to raise others with specificity will not preserve all the objections a

party might have to this Report and Recommendation. Willis v. Sec’y of Health

and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of
Report and Recommendation

Motion for Default Judgment/Recommendation of Dismissal 4 Johnson v. Caruso; Case No. 09-10910

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

Date: April 3, 2012 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on April 3, 2012, I electronically filed the foregoing paper with

the Clerk of the Court using the ECF system, which will send electronic

notification to the following: Joshua D. Marcum, and I certify that I have mailed

by United States Postal Service the paper to the following non-ECF participant:

Corielle Johnson, ID# 324642, BARAGA CORRECTIONAL FACILITY, 13924

Wadaga Road, Baraga, MI 49908.

s/Darlene Chubb 

Judicial Assistant

(810) 341-7850

darlene_chubb@mied.uscourts.gov