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McClain v. Swanson, Walker & Assoc.

United States District Court, D. Kansas

April 1, 2014

Camille McClain, Plaintiff,
v.
Swanson, Walker & Assoc., et al., Defendants.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, District Judge.

This is an action for damages under the Fair Debt Collection Practices Act, 15 U.S.C. ยง 1692 et seq. The plaintiff complains of certain debt collection efforts by the defendants Swanson, Walker and Associates, a New York business entity, and one of its agents, Olivia Weston. McClain served Swanson, Walker by certified mail delivered to its registered service agent, United States Corporation Agents, Inc., in Brooklyn, New York. Service was executed and returned on December 27, 2013. On January 6, 2014, McClain moved for default judgment against Swanson, Walker "pursuant to Rule 55 of the Federal Rules of Civil Procedure." (Dkt. 4, at 2).

Rule 55 mandates a two-step process for a party who seeks a default judgment in his favor. First, the party wishing to obtain a default judgment must apprise the court that the opposing party has failed to plead or otherwise defend by requesting "by affidavit or otherwise" that the clerk enter default on the docket. Fed.R.Civ.P. 55(a); see also Meehan v. Snow, 652 F.2d 274, 276 (2d Cir.1981). Second, following an entry of default by the clerk, "the party entitled to a judgment by default shall apply to the court therefor." Fed.R.Civ.P. 55(b)(2).

Williams v. Smithson, 1995 WL 365988, *1 (10th Cir. 1995). Failing to observe this "set sequence" effectively "asks the court to act out of term." Lott v. Marietta Mun. Ct., 2013 WL 6662836, *2 (S.D. Ohio, 2013).

Here, McClain has moved for default judgment directly without a prior entry of default. The plaintiff is directed to make the appropriate application with the Clerk of the Court. Following entry of default, the court will again take up plaintiff's Motion for Default Judgment, and schedule a hearing on damages pursuant to Rule 55(b)(2).

IT IS SO ORDERED.


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