IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

FUN CHARTERS, INC., )

 )

Plaintiff, )

)

v. ) CIVIL ACTION 14-0263-WS-M

 )

The Vessel SHADY LADY, )

Official No. 681969, her engines, etc., )

in rem, )

 )

Defendant. )

ORDER

This matter comes before the Court on plaintiff’s Motion for Default and Default 

Judgment (doc. 30) against the in rem defendant, The Vessel SHADY LADY, Official No.

681969 (the “Vessel”). Plaintiff requests that this Court enter an order that both declares the 

Vessel to be in default and imposes a default judgment against such Vessel in the amount of 

$188,954.48. No certificate of service accompanied the Motion, and it appears that no notice of 

this Motion or the proposed default and default judgment remedies has been given to anyone.

On June 10, 2014, this Court entered an Order (doc. 5) directing issuance of a warrant for 

arrest of the Vessel. The Clerk of Court promptly issued a Warrant for Arrest in Rem (doc. 7), 

after which the U.S. Marshals Service arrested the Vessel and placed it in the possession of a 

substitute custodian. (See doc. 11.) Actual notice of this action was given to the Vessel’s owner 

and all lien claimants who have filed notices of lien with the U.S. Coast Guard, and public notice 

of this action was published in The Press-Register. (See doc. 16, ¶¶ 3-4.) Court-ordered 

deadlines for all such persons and entities to file verified statements of claim pursuant to 

Supplemental Rule C(6)(a) have long since expired, yet none came forward and no statements of 

claim were filed.

On September 16, 2014, the undersigned entered a Decree Ordering Sale of Vessel (doc. 

24), which directed that the Vessel be sold by the U.S. Marshals Service via public auction on 

the front steps of the courthouse at noon on October 22, 2014. The Decree made appropriate 

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arrangements for publication of notice of sale, and provided that all claims in intervention 

against the Vessel or the proceeds of the sale must be filed on or before November 21, 2014. On 

October 29, 2014, the U.S. Marshals Service caused to be filed a Bill of Sale reflecting that the 

Vessel was sold to sole bidder Fun Charters, Inc. for the amount of $70,000 (which was 

submitted via credit bid). (See doc. 28.) No claimant has come forward in intervention within 

the designated time, and the court-ordered period for doing so has now expired.

The foregoing circumstances, as documented above and in the court file, plainly satisfy 

the criteria for a Clerk’s Entry of Default against the Vessel pursuant to Rule 55(a), Fed.R.Civ.P.

That said, there is a significant technical infirmity in plaintiff’s filing. In particular, 

plaintiff improperly conflates and combines the distinct procedures of a clerk’s entry of default 

and a court’s entry of default judgment. The law is clear that these are separate steps that should 

not be combined into one. See, e.g., Ramada Franchise Systems, Inc. v. Baroda Enterprises, 

LLC, 220 F.R.D. 303, 304 (N.D. Ohio 2004) (“An entry of default and a default judgment are 

distinct events that require separate treatment.”). “First, the party seeking a default judgment 

must file [an application] for entry of default with the clerk of a district court by demonstrating 

that the opposing party has failed to answer or otherwise respond to the complaint, and, second, 

once the clerk has entered a default, the moving party may then seek entry of a default judgment 

against the defaulting party.” UMG Recordings, Inc. v. Stewart, 461 F. Supp.2d 837, 840 (S.D. 

Ill. 2006); see also Gottschalk v. City and County of San Francisco, 964 F. Supp.2d 1147, 1165 

(N.D. Cal. 2013) (“entry of default judgment is a two-step process; default judgment may be 

entered only upon the entry of default by the Clerk of the Court”) (citation omitted); Twist and 

Shout Music v. Longneck Xpress, N.P., 441 F. Supp.2d 782 (E.D. Tex. 2006) (“Securing a 

default judgment is a three-step procedure involving the defendants’ default, entry of default, and 

a default judgment.”). The point is that a clerk’s entry of default must precede an application to 

the district judge for entry of default judgment.1 Plaintiff has attempted to merge these two 

distinct steps into one by requesting both forms of relief contemporaneously.

 1 See, e.g., Whitesell Int’l Corp. v. Smith Jones, Inc., 827 F. Supp.2d 964, 967 (S.D. 

Iowa 2011) (“After default has been entered, a plaintiff can move for a default judgment ...”); 

Christenson Media Group, Inc., 782 F. Supp.2d 1213, 1223 (D. Kan. 2011) (“By moving for 

default judgment first, plaintiff is trying to skip step one and jump to step two. A plaintiff may 

not seek default judgment before it has applied for entry of default.”); Virgin Records America, 

(Continued)

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Under the circumstances, it is ordered that the Motion for Default and Default Judgment 

(doc. 30) is granted in part, and denied in part. Plaintiff’s request for entry of default is 

granted, and the Clerk of Court is directed to enter a default against the Vessel pursuant to Rule 

55(a), Fed.R.Civ.P. However, plaintiff’s request for entry of default judgment is denied as 

premature. The Clerk of Court is directed to mail a copy of this Order to Adrenaline Charters, 

LLC, c/o Edward Sims, 5405 Ornacor Avenue, Orange Beach, AL 36561, to provide it with 

notice of the pending default proceedings. If no motion to set aside the default is filed on or 

before January 2, 2015, plaintiff may renew its Motion for Default Judgment, supported by 

exhibits and authorities, as appropriate.

DONE and ORDERED this 19th day of December, 2014.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

 

Inc. v. Johnson, 441 F. Supp.2d 963, 965 (N.D. Ind. 2006) (“Entry of default must precede an 

entry of default judgment.”); Fairman v. Hurley, 373 F. Supp.2d 227, 231 (W.D.N.Y. 2005) 

(“Without first obtaining an entry of default, plaintiff cannot obtain a default judgment from this 

Court.”); Sun v. United States, 342 F. Supp.2d 1120, 1124 n. 2 (N.D. Ga. 2004) (finding motion 

for default judgment to be premature where plaintiff had failed to obtain entry of default, a 

prerequisite to a default judgment); Canady v. Erbe Elektromedizin GmbH, 307 F. Supp.2d 2, 8–

9 (D.D.C. 2004) (pointing out “fatal flaw” in motion for default judgment where party had failed 

to ask clerk to enter default first, leaving party in no position to apply for entry of default 

judgment); Lewis v. Parker, 2014 WL 3735244, *2 (E.D. Mich. June 24, 2014) (“In this case, the 

Clerk has not entered [a] default under Rule 55(a). Therefore, Plaintiff is not entitled to a default 

judgment under Rule 55(b).”).

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