United States District Court, D. Colorado
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL THE
CLERK TO ENTER DEFAULT AND DEFAULT JUDGMENT
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Francis Cox's
Motion to Compel the Clerk of the Court to Enter Default and
Default Judgment as to Bill and Maria Rensel Only (Fed. R.
Civ. P. 55(a)) (Doc. # 113). Having reviewed the Motion,
pertinent record, and relevant law, and for the following
reasons, Plaintiff's Motion is denied.
asserts that he properly served Defendants Maria Rensel and
Bill Rensel with the summons and his civil complaint, and
that, upon expiration of Defendants' answer deadline, he
moved for the Clerk of the Court (“Clerk”) to
enter default as to Defendants. (Id. at 2.) On July
15, 2019, the Clerk denied Plaintiff's Motion for Default
due to procedural defects with Plaintiff's request. (Doc.
# 95.) On July 29, 2019, Plaintiff again moved the Clerk to
enter default as to Defendants (Doc. # 106), and again, on
July 31, 2019, the Clerk denied Plaintiff's renewed
request as a result of procedural defects that remained with
Plaintiff's request for default (Doc. # 108).
of refiling a compliant affidavit to address the deficiencies
noted by the Clerk, on August 26, 2019, Plaintiff filed the
instant Motion and therein argues that the Clerk has
incorrectly determined that his request for default is
deficient and that the documentation filed in support of his
request for default complies with Federal Rules of Civil
Procedure 4 and 55. (Doc. # 113 at 3.) As a result, Plaintiff
requests this Court to order the Clerk of the Court to enter
default. (Id. at 3.)
Rule of Civil Procedure 55(a) provides that “[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.” “Entry of default
by the clerk is a necessary prerequisite that must be
performed before a district court is permitted to issue a
default judgment.” Watkins v. Donnelly, 551
Fed.Appx. 953, 958 (10th Cir. 2014); see also Garrett v.
Seymour, 217 Fed.Appx. 835, *2 (10th Cir. 2007).
“The clerk's function is not perfunctory[;]
[b]efore entering a default, the clerk must examine the
affidavits filed and find that they meet the requirements of
Rule 55(a).” Wright & Miller, Fed. Practice and
Procedure § 2682 (4th ed. 2019); see also
Meyers v. Pfizer, Inc., 581 Fed.Appx. 708, 710-11 (10th
Cir. 2014) (holding that district court acted within
discretion in denying motion for default judgment where court
clerk declined to enter a default due to defective service).
Rule 55(a) “gives the clerk authority to enter a
default is not a limitation on the power of the court to do
so.” Id. “Although Rule 55(a)
contemplates that entry of default is a ministerial step to
be performed by the clerk of the court, ” a district
court maintains inherent power to exercise discretion in
determining whether to enter a default. City of New York
v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir.
2011) (internal citations omitted); see also Wright
& Miller, supra, at § 2682.
Court declines to order the Clerk to enter default as to
Defendants. Contrary to Plaintiff's contention that the
Clerk “twice failed to follow the rule” (Doc. #
113 at 1), review of the record demonstrates that the Clerk
followed Rule 55(a) and properly discharged its duty to
examine the affidavits filed and determine whether they meet
the requirements of Rule 55(a). The Clerk concluded that they
did not. Indeed, the Clerk has twice issued notices informing
Plaintiff that a default would not enter because of specific
defects in the affidavits filed in support of Plaintiff's
Motion for Default. (Doc. ## 95, 108.) Rather than comply
with the Clerk's direction, Plaintiff seemingly continues
to file deficient affidavits. Plaintiff's disagreement
with the Clerk's direction does not warrant an order
requiring the Clerk to enter a default.
because the Clerk of the Court has not entered a default,
Plaintiff's motion for a default judgment is improper and
will be DENIED.
foregoing reasons, it is ORDERED that Plaintiffs Motion to
Compel the Clerk of the Court to Enter Default and Default
Judgment as to Bill and Maria Rensel ...