United States District Court, D. Montana, Great Falls Division
FINDINGS AND RECOMMENDATION ON DEFENDANT'S MOTION
JOHNSTON, UNITED STATES MAGISTRATE JUDGE.
October 14, 2016, Pro Se Plaintiff Leslie Young
Lodge Pole (“Mr. Lodge Pole”) filed a Complaint
and a Motion for Leave to Proceed In Forma Pauperis.
(Docs. 1 and 2). The Court granted Mr. Lodge Pole leave to
proceed in forma pauperis and conducted a sua
sponte screening of Mr. Lodge Pole's Complaint
pursuant to 28 U.S.C. § 1915. (Doc. 6). Mr. Lodge Pole
was granted leave to file an Amended Complaint on or before
December 1, 2016. (Id. at 6-7). On February 23,
2017, Mr. Lodge Pole filed his Amended Complaint asserting
federal question jurisdiction. (Doc. 9 at 5). The Complaint
against Pro Se Defendants Emery Nault, Lenore
Meyers-Nault, LCPC, LAC, and Gloria Little, LAC, alleged
wrongful termination, “Sexual Harassments/Sexual
Suggestive Overtones, ” defamation, and religious
discrimination. (Id. at 7).
September 19, United States District Judge Brian Morris
issued an Order stating that Mr. Lodge Pole had not provided
the Court with a return of service on Defendants in
accordance with Fed.R.Civ.P. 4(m). (Doc. 10). Judge Morris
ordered that Mr. Lodge Pole file proof of service of Summons
and Complaint on Defendants on or before October 19, 2017.
(Id. at 1-2). On October 20, 2017, Mr. Lodge Pole
filed notice that Defendant Lenore Meyers-Nault (“Ms.
Meyers-Nault”) was served on October 19, 2017, and that
Defendants Emery Nault (“Mr. Nault”) and Gloria
Little (“Ms. Little”) were served on October 20,
2017. (Docs. 12, 13, and 14). Accordingly, Ms.
Meyers-Nault's Answer was due on November 9, 2017, and
the others' on November 10, 2017.
November 22, 2017, Mr. Lodge Pole filed a Motion for Entry of
Default Judgment against Defendants “pursuant to
Fed.R.Civ.P. 55(a), ” stating that Defendants had not
filed an appearance with the Court. (Doc. 15). Mr. Lodge
Pole's Motion, however, did not indicate that he had
contacted Defendants and stated whether the motion was
opposed, was filed without a certificate of service, and the
accompanying affidavit was not notarized. (See Doc.
17). On December 5, 2017, Mr. Lodge Pole filed an Amended
Motion for Entry of Default which stated that he had
contacted the other parties and that they did not object to
the motion. (Doc. 18).
December 7, 2017, Defendants, now represented by counsel,
filed their Answer to Mr. Lodge Pole's Amended Complaint.
(Doc. 20). That same day, Mr. Lodge Pole filed a Second
Amended Motion for Entry of Default, which was identical in
substance to his original Amended Motion. (Doc. 21;
see Doc. 18). On December 12, 2017, Defendants filed
a Response to Mr. Lodge Pole's original Amended Motion
for Entry of Default. (Doc. 22). Mr. Lodge Pole has not filed
a Reply brief in support of his Motion. Therefore, the issue
has been fully briefed and is ripe for adjudication.
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).
Once default has been entered, the non-defaulting party may
seek a default judgment, either to the Clerk of Court if the
claim is for a sum certain, or to the Court in all other
cases. Fed.R.Civ.P. 55(b). The Court may also set aside an
entry of default for good cause. Fed.R.Civ.P. 55(c). In
determining whether good cause exists, a court may consider
“(1) whether the plaintiff will be prejudiced, (2)
whether the defendant has a meritorious defense, and (3)
whether culpable conduct of defendant led to the
default.” Brandt v. Am. Bankers Ins. Co. of
Florida, 653 F.3d 1108, 1111 (9th Cir. 2011) (quoting
Falk v. Allen, 739 F.2d 461, 463). “Any doubts
about whether relief should be granted should be resolved in
favor of setting aside the default so that the case may be
heard on the merits.” Tolson v. Hodge, 411
F.2d 123, 130 (4th Cir. 1969) (citing Hutton v.
Fisher, 359 F.2d 913, 916 (3d Cir. 1966)).
Lodge Pole sought an entry of default on November 22, 2017.
(Doc. 15). The Clerk of Court, therefore, was required to
enter notice of Defendants' default. Fed.R.Civ.P. 55(a)
(“the clerk must enter the party's default”).
No such notice was filed in this case. However, “[a]
defendant who fails to [file a responsive pleading] within
the time specified by the rules is in default even if that
fact is not officially noted.” Charles Alan Wright
& Arthur R. Miller, Federal Practice and
Procedure, vol. 10A, § 2692 (4th ed. 2017).
Therefore, the Court finds that Defendants are in default as
of November 10, 2017.
appears to the Court that Mr. Lodge Pole is seeking
“default judgment” under Rule 55(b), despite
being stylized as an Amended Motion for Entry of Default
pursuant to Rule 55(a). (See Docs. 18 and 21). As
illustrated in Section I above, this case has a complicated
procedural history. Mr. Lodge Pole's motions seem to
confuse an entry of “default” with an entry of
“default judgment, ” as evidenced by his motion
for “default judgment” under Rule 55(a) instead
of 55(b). Pro se pleadings are to be liberally
construed so as to do justice, particularly “where
highly technical requirements are involved.” U.S.
v. Ten Thousand Dollars ($10, 000) in U.S.
Currency, 860 F.2d 1511, 1513 (9th Cir. 1988) (quoting
Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir.
1984)). Therefore, the Court will construe Mr. Lodge
Pole's Amended Motion for Entry of Default as a motion
for entry of default judgment.
stated, the Clerk of Court was required to enter
Defendants' default as of November 10, 2017. Because they
are already in default, Defendants' Brief in Opposition
to Plaintiff's Motions for Entry of Default (Doc. 22)
should instead be a motion to set aside default pursuant to
Rule 55(c). As the Fourth Circuit noted, citing cases from
the Second, Third, Sixth, Ninth, and Tenth Circuits,
“[i]t has been held in an extensive line of decisions
that Rules 55(c) and 60(b) are to be liberally construed in
order to provide relief from the onerous consequences of
defaults and default judgments.” Tolson, 411
F.2d at 130 (listing cases). Given the confusion described
above, the Court shall construe Defendants' Brief in
Opposition as a motion to set aside default under Rule 55(c).
Motion to ...