United States District Court, S.D. West Virginia, Charleston
SHERRY A. TULK, Plaintiff,
MARSHALL UNIVERSITY, JEROME GILBERT, WEST VIRGINIA UNIVERSITY, WEST VIRGINIA REED COLLEGE OF MEDIA, CHAD MEZERA, GORDON GEE, WEST VIRGINIA STATE UNIVERSITY REED COLLEGE OF MEDIA, MARSHALL COLLEGE OF ARTS & MEDIA, and SANRDA REED, Defendants.
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley United States Magistrate Judge.
matter is assigned to the Honorable John T. Copenhaver, Jr.,
Senior United States District Judge, and it is referred to
the undersigned United States Magistrate Judge for submission
of proposed findings and a recommendation for disposition,
pursuant to 28 U.S.C. § 636(b)(1)(B). Pending before the
court is the plaintiff's Motion for Declaring Default
Judgment (ECF No. 10).
30, 2017, the plaintiff filed an Application to Proceed
Without Prepayment of Fees and Costs (ECF No. 1) and the
instant Complaint (ECF No. 2), alleging copyright
infringement by the defendants. The matter is before the
undersigned for initial screening pursuant to 28 U.S.C.
§ 1915(e)(2)(B), and service of process has not yet
on July 10, 2018, the plaintiff filed the instant Motion
Declaring Default Judgment (ECF No. 10), asserting that the
defendants are in default because they have failed to appear
and defend this action. However, the defendants have not yet
been served with process and, thus, they are not in default.
The plaintiff further incorrectly claims that the defendants
disregarded a prior status conference held in this matter on
April 18, 2018. Because the defendants had not been served
with process, they were not obligated to attend that hearing.
55(a) of the Federal Rules of Civil Procedure requires that
default be entered by the Clerk when “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 . . . .”
Fed.R.Civ.P. 55(a). Furthermore, “Rule [55(b)] of the
Federal Rules of Civil Procedure authorizes the entry of a
default judgment when a defendant fails ‘to plead or
otherwise defend' in accordance with the Rules.”
United States v. Moradi, 673 F.2d 725, 727 (4th Cir.
1982); see also Fed. R. Civ. P. 55(b).
plaintiff's Motion for Default Judgment (ECF No. 10) was
filed prior to proper service of process on any of the
defendants. The defendants have no obligation to “plead
or otherwise defend” against the plaintiff's
Complaint until they are properly served with process.
Accordingly, the undersigned proposes that the presiding
District Judge FIND that the plaintiff's
motion is unwarranted and she is not presently entitled to
entry of a default judgment or for any summary award of the
relief demanded in the Complaint.
reasons stated herein, it is respectfully
RECOMMENDED that the presiding District
Judge DENY the plaintiff's Motion
Declaring Default Judgment (ECF No. 10). A separate Order
will be entered concerning further proceedings in this
parties are notified that this Proposed Findings and
Recommendation is hereby FILED, and a copy
will be submitted to the Honorable John T. Copenhaver, Jr.,
Senior United States District Judge. Pursuant to the
provisions of Title 28, United States Code, Section
636(b)(1)(B), and Rules 6(d) and 72(b), Federal Rules of
Civil Procedure, the plaintiff shall have fourteen days
(filing of objections) and three days (mailing) from the date
of filing this Proposed Findings and Recommendation within
which to file with the Clerk of this Court, specific written
objections, identifying the portions of the Proposed Findings
and Recommendation to which objection is made, and the basis
of such objection. Extension of this time period may be
granted by the presiding District Judge for good cause shown.
to file written objections as set forth above shall
constitute a waiver of de novo review by the
District Court and a waiver of appellate review by the
Circuit Court of Appeals. Snyder v. Ridenour, 889
F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S.
140 (1985); Wright v. Collins, 766 F.2d 841 (4th
Cir. 1985); United States v. Schronce, 727 F.2d 91
(4th Cir. 1984). Copies of such objections shall be provided
to the opposing party and Judge Copenhaver.
Clerk is directed to file this Proposed Findings and
Recommendation and to mail a copy of the same to the