United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard Chief United States District Judge
case is before the Court on several pending matters relating
to the defendants' alleged defaults. As explained below,
the Court will-with some reluctance-enter default against the
plaintiff, Invictus Residential Pooler Trust 1A, initiated
this action on April 19, 2019, filing its complaint for
foreclosure of real property against defendants Cynthia
Ziemba (the owner and resident of the property), Delroy
Fischer (resident of the property), and two unknown tenants.
Filing 1. Summons was requested on April 19 and issued on
April 22 (the next business day). Filing 2; filing 3; filing
4; filing 5; filing 8. Ziemba sent a document to the Court
with the heading, "Answer," that was filed on July
1, but that filing simply asks the recipient for an extension
to pay off the loan. Filing 9. It's not entirely clear
whether that request was directed to the Court or Invictus.
Invictus had not, at that point, filed any returns of service
with the Court. So on August 12, 2019-nearly 4 months after
summons was issued- the Magistrate Judge entered an order to
show cause directing Invictus to show cause why its claims
against Fischer and the unknown tenants should not be
dismissed for failure to serve process or for want of
prosecution. Filing 10. That order set a show cause deadline
of September 3, 2019. Filing 10.
didn't file returns of service, ask for additional time,
or otherwise respond to the Magistrate Judge's order. So,
on September 16, the Magistrate Judge filed her findings and
recommendation that Invictus' claims against Fischer and
the unknown tenants be dismissed for failure of service or
want of prosecution. Filing 11. Invictus had 14 days to
object to the findings and recommendation. See
September 30-the very last day to object-Invictus filed an
objection to the findings and recommendation. Filing 16. The
objection was supported by filed returns of service on Ziemba
(filing 12) and Fischer (filing 12-1). Those returns,
remarkably, indicated that service had been effected on May
30 and June 5, respectively. Filing 12; filing 12-1. Even
more remarkably, Invictus' "objection" simply
points out the returns of service, with no effort to explain
or excuse why Invictus didn't respond to the Magistrate
Judge's order. See filing 16. In other words,
the Magistrate Judge ordered Invictus to show cause why its
claims shouldn't be dismissed, and Invictus-with returns
of service already in hand-apparently chose to simply ignore
the Magistrate Judge's order.
same time, Invictus voluntarily dismissed its claims against
the unknown tenants, whom (if they exist) it had been unable
to serve. Filing 15. And Invictus moved for the Clerk of the
Court to enter Ziemba's and Fischer's defaults,
pursuant to Fed.R.Civ.P. 55(a). Filing 13; filing 14. Because
Ziemba had sent correspondence that had been filed as an
"answer," and because the Magistrate Judge's
findings and recommendation that Invictus' claim against
Fischer be dismissed was still pending, the Clerk of the
Court withheld entry of default at the express instruction of
chambers. Now, the Court must sort out the mess that has been
Court will, nonetheless, grant Invictus' motions for
default-which, in turn, will moot the findings and
recommendation and subsequent objection. Invictus'
unexplained disregard for the Magistrate Judge, and preceding
delay in prosecuting this action, have placed an unnecessary
burden on the Court. But that's the fault of counsel, not
the client whose claim is actually at issue. And on the
merits of the client's claim, default is
default is obvious. Ziemba's is less so, because she has
filed a document captioned, "Answer." Filing 9. The
Court must consider whether the allegedly defaulting party
has filed a responsive answer or other pleading. Rogovsky
Enter., Inc. v. Masterbrand Cabinets, Inc., 88 F.Supp.3d
1034, 1039 (D. Minn. 2015). But Ziemba's filing is not an
"answer" within the meaning of Fed.R.Civ.P.
7(a)(2). See Update Art, Inc. v. Charnin, 110 F.R.D.
26, 43 (S.D.N.Y. 1986); White v. Smith, 91 F.R.D.
607, 608 (W.D.N.Y. 1981); see also Astoria Energy II, LLC
v. HH Valves Ltd., No. 17-CV-5724, 2018 WL 3912282, at
*2 (E.D.N.Y. July 13, 2018), report and recommendation
adopted, 2018 WL 3897925 (E.D.N.Y. Aug. 15, 2018);
Metro. Life Ins. Co. v. Scott, No. 1:14-CV-3891,
2015 WL 13545166, at *4 (N.D.Ga. Sept. 4, 2015); cf.
Royal Petroleum Corp. v. Smith, 127 F.2d 841, 843
(2d Cir. 1942); Halnat Pub. Co. v. L.A.P.A., Inc.,
669 F.Supp. 933, 935 (D. Minn. 1987).
particular, Ziemba's letter does not assert a defense,
deny the plaintiff's claims, or deny liability.
See Halnat Pub. Co., 669 F.Supp. at 935;
see also Mesirow v. Duggan, 240 F.2d 751, 756 (8th
Cir.), reh'g denied and opinion modified sub
nom. Green v. Duggan, 243 F.2d 109 (8th Cir.
1957); cf. Stephenson v. El-Batrawi, 524
F.3d 907, 914 (8th Cir. 2008). Accordingly, Ziemba has failed
to "plead or otherwise defend" within the meaning
of Rule 55(a), and entry of default is
explained above, the Court will grant Invictus' motions
for entry of default. But that is only ...