United States District Court, D. Nebraska
ZEMIN ZHAO, AND an individual; and ZHONG LING CHEN, an individual; Plaintiffs,
JI FENG HUANG, an individual; Defendant.
MEMORANDUM AND ORDER
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion for Default
Judgment, ECF No. 20, filed by Plaintiffs Zemin Zhao and
Zhong Ling Chen. For the reasons stated below, the Motion for
Default Judgment will be construed as a Motion for a
Clerk's Entry of Default.
November of 2013 and October of 2014, Plaintiffs made three
loans (collectively “Loans”) to Defendant Ji Feng
Huang, totaling $259, 650.97, at an interest rate of three
percent per month. Amended Complaint ¶¶ 1-5, ECF
No. 15, Page ID 65. Huang signed promissory notes for each of
the Loans and agreed to repay them within one year.
Id. On November 18, 2015, after failing to pay any
amount on the Loans, Plaintiffs and Huang entered into an
agreement, by which Huang agreed to a modified repayment
schedule of the entire amount due, which then totaled $372,
536.05, plus twelve percent annual interest. Id.
¶¶ 7-8. Huang timely made the first payment of the
modified schedule, $65, 573.77, but defaulted on the second
payment, which was due on November 30, 2015. Id.
filed in this Court on August 3, 2015, ECF No. 1, and amended
their complaint on February 15, 2016. ECF No. 15. At the
filing of the Amended Complaint, Huang owed Plaintiffs an
amount totaling $306, 962.28, plus interest from the November
30, 2015, default. Id. ¶ 11. After several
months, service was executed upon Huang in China. ECF No. 19.
On December 8, 2016, Plaintiffs filed their Motion for
Default Judgment. ECF No. 20. That same day, Plaintiffs filed
an affidavit of Plaintiff Zemin Zhao, ECF No. 21, in which
Zhao stated that since the filing of the Amended Complaint,
Huang had made two delinquent payments,  which Plaintiffs
accepted. Zhao Affidavit ¶¶ 14-19, ECF No. 21, Page
ID 91. Based on the delinquent payments and applicable
interest rate, Huang owed Plaintiffs $210, 387.60. Motion for
Default Judgment ¶ 19, ECF No. 20, Page ID 88. As of the
date of the filing of this Order, Huang has not responded to
this action in any way.
Rule 55, “[w]hen a party ‘has failed to plead or
otherwise defend' against a pleading listed in Rule 7(a),
entry of default under Rule 55(a) must precede grant of a
default judgment under Rule 55(b). Johnson v. Dayton
Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998)
(quoting Fed.R.Civ.P. 55) (citing 10 Charles Alan Wright,
Arthur R. Miller, and Mary Kay Kane, Federal Practice and
Procedure § 2682 (2d ed. 1983)). “Entry of a
default under Federal Rule of Civil Procedure 55(a) is not,
as such, entry of a judgment; it merely permits the plaintiff
to move for a default judgment under Rule 55(b)(2), assuming
that the default is not set aside under Rule 55(c).”
Inman v. American Home Furniture Placement, Inc.,
120 F.3d 117, 118 n.2 (8th Cir. 1997). Moreover, “a
default judgment cannot be entered until the amount of
damages has been ascertained.” Hagen v.
Sisseton-Wahpeton Community College, 205 F.3d 1040, 1042
(8th Cir. 2000) (quoting Enron Oil Corp. v.
Diakuhara, 10 F.3d 90, 97 (2d Cir. 1993)).
summary, a default judgment under Rule 55 is a two-step
process. First, “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 . . . .” Fraserside IP L.L.C. v.
Youngtek Sols. Ltd., 796 F.Supp.2d 946, 951 (N.D. Iowa
2011) (quoting Hayek v. Big Bros./Big Sisters of
Am., 198 F.R.D. 518, 520 (N.D. Iowa 2001)). Second,
after the clerk has entered a default, “the moving
party may seek entry of judgment on the default under either
subdivision (b)(1) or (b)(2) of the rule.” Id.
(quoting Hayek, 198 F.R.D. at 520).
Court cannot rule on Motion for Default Judgment because the
Clerk of Court has not entered a default against Huang.
Therefore, the Court will construe the Plaintiffs' Motion
as a motion for clerk's entry of default. The Court will
refer the Motion for Default Judgment to the Clerk of Court.
In the event that the Clerk of Court enters a default, the
Court will then consider the Motion for Default Judgment
after Huang has had an opportunity to respond. Accordingly,
IT IS ORDERED:
Motion for Default Judgment, ECF No. 20, is construed as a
motion for clerk's entry of default under Fed.R.Civ.P.
55(a) and is referred to the Clerk of Court; 2. In the event
the Clerk of Court enters a default against Defendant Ji Feng
a. The Clerk of Court is directed to send a copy of this
Memorandum and Order as well as the entry of default to the
address listed below:
Ji Feng Huang 38-1 Nanfugong, Yunfeng RD Baiyun District,
Guiyang City Guizhou, China 550014
b. Defendant Ji Feng Huang must respond to Plaintiffs'
Motion for Default Judgment, ECF No. 20, within fourteen days
after the Clerk ...