United States District Court, D. Nebraska
NEBRASKA DATA CENTERS, LLC, and AMERICAN NEBRASKA LIMITED PARTNERSHIP, Plaintiffs,
LEO KHAYET, and TIMBER VENTURES, LLC, Defendants.
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
matter is before the Court on the Findings and Recommendation
issued by Magistrate Judge Cheryl R. Zwart, ECF No. 195, on
June 25, 2018. For the reasons stated below, the Court will
modify the action proposed in the Findings and
5, 2018, the Court granted, in part, Defendant Leo
Khayet's Motion to Dismiss Plaintiff Nebraska Data
Centers' (NDC) Amended Complaint. Mem. & Order, ECF
No. 158. The Order permitted NDC to file a second amended
complaint, which it did on May 25, 2018. Second Am. Comp.,
ECF No. 166. On June 11, 2018, the Magistrate Judge issued a
text order instructing Khayet to answer or otherwise respond
to the Second Amended Complaint by June 15, 2018, and
instructing Defendant Timber Ventures, LLC, to answer or
otherwise respond by June 19, 2018.
the Second Amended Complaint was filed, Khayet has filed
several repetitive motions requesting various forms of relief,
including dismissal, transfer, and a stay of this case, but
each of those motions was summarily denied and he has yet to
file an answer to the Second Amended Complaint. He also
declined participation in a scheduled show-cause hearing
before the Magistrate Judge on June 19, 2018. ECF No. 189. No
appearance or filings have been made on behalf of Timber
the Magistrate Judge has recommended that the Court enter
default judgment against Khayet and Timber Ventures, LLC,
because they have failed to answer the Second Amended
Complaint. Khayet did not object to the Findings and
Recommendation under 28 U.S.C. § 636(b)(1), but
submitted a Notice of Fraud on the Court, ECF No. 196, and
other related filings, ECF No. 197, 199, persisting in his
demands for transfer or dismissal of this case.
28 U.S.C. § 636(b)(1)(C), the Court must make a de novo
determination of those portions of the Findings and
Recommendation to which the Defendant has objected. The Court
may accept, reject, or modify, in whole or in part, the
Magistrate Judge's findings or recommendation. The Court
may also receive further evidence or remand the matter to the
Magistrate Judge with instructions.
prescribes a two-step process for obtaining a default
judgment. “When 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); see also Tollefson v. Pladson, 508 Fed.Appx.
593, 595 (8th Cir. 2013) (concluding that the district court
erred by entering “default judgment without first
directing a clerk's entry of default under Rule
55(a)”). Further, the Court cannot enter default
judgment absent a motion by the party seeking the judgment.
Fed.R.Civ.P. 55(b) (stating a “party must apply to the
court for a default judgment”). There has been no entry
of default under Rule 55(a) and no application for default
judgment under Rule 55(b) in this case. Default judgment
under Rule 55(b) is, therefore, premature.
Timber Ventures, LLC, has yet to make an appearance, and
Khayet must not be permitted to persist in his repetitive
motions and notice-filings requesting dismissal, transfer, or
a stay of the case, delaying its progression. See
Fed. R. Civ. P. 1 (The Federal Rules must be employed
“to secure the just, speedy, and inexpensive
determination of every action and proceeding.”).
Accordingly, the Court will modify the Findings and
Recommendation to direct Khayet and Timber Ventures, LLC, to
file an answer to the Second Amended Complaint on or before
July 17, 2018. If no answer is filed, the Clerk of Court will
be directed to enter default against Khayet and Timber
Ventures, LLC,  under Fed.R.Civ.P. 55(a). If default is
entered, the Plaintiffs may then move the Court to enter a
default judgment in accordance with Rule 55(b), and Khayet
and Timber Ventures, LLC, may also move to set aside the
default for “good cause” under Rule 55(c).
1. The Findings and Recommendation issued by Magistrate Judge
Cheryl R. Zwart, ECF No. 195, are modified in accordance with
this Memorandum and Order;
2. Defendants Leo Khayet and Timber Ventures, LLC, must file
an answer to the Second Amended Complaint on or ...