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Capital Equipment, Inc. v. GTE CNH America

September 28, 2006

CAPITAL EQUIPMENT, INC., AN ARKANSAS CORPORATION PLAINTIFF
v.
GTE CNH AMERICA, LLC, SUCCESSOR IN INTEREST TO NEW HOLLAND NORTH AMERICA, INC., A DELAWARE CORPORATION, D/B/A NEW HOLLAND CONSTRUCTION DEFENDANT



The opinion of the court was delivered by: Thomas Eisele United States District Judge

ORDER

Plaintiffs Motion for Default Judgment is before the Court. Fed. R. Civ. P. 55 contemplates a two-step process for the entry of default judgments. First, pursuant to Rule 55(a), the party seeking a default judgment must have the Clerk enter the default by submitting the required proof that the opposing party has failed to plead or otherwise defend. Second, pursuant to Fed. R. Civ. P. 55(b), the moving party may seek entry of judgment on the default under either subdivision (b)(1) or (b)(2) of the rule. See Dahl v. Kanawha Inv. Holding Co., 161 F.R.D. 673, 683 (N.D. Iowa 1995).

"Entry of default under Rule 55(a) must precede grant of a default judgment under Rule 55(b)." See Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998); see also Hagen v. Sisseton-Wahpeton Community College, 205 F.3d 1040, 1042 (8 th Cir. 2000) (citing Johnson for this requirement). In this case, there has been no entry of default. In the event a clerk's default is entered, Plaintiff will have to seek a default judgment as provided for in Fed. R. Civ. P. 55(b).

It appears, however, that the name and address for ETC Engineers, Inc.'s agent for service of process on the summons may be incorrect. While the summons lists "Mizran Rahman, at 1510 S. Broadway, Little Rock, AR," the name and address of the agent for ETC Engineers, Inc. listed on the Arkansas Secretary of State's website*fn1 is "Mizanur Rahman" at "1516 S. Broadway, Little Rock, AR 72202." While the Court would normally treat this as a Motion for a Clerk's Default, the Court will deny this motion without prejudice to allow the parties to inquire into this matter further.*fn2

IT IS THEREFORE ORDERED THAT Plaintiff's Motion for Default Judgment (# 10), be, and is hereby, ...


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