McBride v. Walmart Inc.

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION STEVEN MCBRIDE, Plaintiff, v. Case No. 3:20-cv-620-TJC-JRK WALMART INC., DOUG MCMILLION, STORE MANAGER JOHN, STORE MANAGER JIM, Defendants. ____ O R D E R This cause is before the Court on Plaintiff’s Request for Clerk to File a Default Judgment and/or Motion for Court to Issue a Default Judgment (Doc. No. 19; “Motion”) and accompanying affidavit (Doc. No. 20), both filed August 9, 2021. In the Motion, Plaintiff seeks the entry of a default judgment on the ground that “Defendants have failed and[/]or refused to either accept the waiver [of service] or show good cause.” Motion at 3 (capitalization omitted).1 Upon review of the Motion, the file, and the applicable law, the Motion is due to be denied for the reasons set forth herein.2 Rule 55 provides the requirements for entry of a default judgment. See 1 As the Motion does not contain numbered pages, citations to it are in accordance with the pagination assigned by the Court’s electronic filing system (CM/ECF). 2 The Court is ruling on the Motion without awaiting a response because a response is not necessary to decide the matter. Fed. R. Civ. P. 55(b). A default judgment may be entered “against a defendant who never appears or answers a complaint, for in such circumstances the case never has been placed at issue.” Solaroll Shade & Shutter Corp. v. Bio-Energy Sys., 808 F.2d 1130, 1134 (11th Cir. 1986). Here, the entry of a default judgment is not appropriate because Defendants are not in default and have appeared in this case. See Fed. R. Civ. P. 55. Further, on October 21, 2020, Defendants filed a motion to dismiss, see Defendants’ Motion to Dismiss Plaintiffs Complaint (Doc. No. 9), that was granted on July 28, 2021, see Order (Doc. No. 17).? Upon due consideration, it is ORDERED: Plaintiff's Request for Clerk to File a Default Judgment and/or Motion for Court to Issue a Default Judgment (Doc. No. 19) is DENIED.4 DONE AND ORDERED in Jacksonville, Florida on August 13, 2021. lomo. KR. KAR □□ JAMES R. KLINDT United States Magistrate Judge keh Copies to: Counsel of Record Pro Se Party 3 Pursuant to the July 23, 2021 Order granting Defendants’ motion to dismiss, Plaintiff has until August 27, 2021 to file an Amended Complaint if he so chooses. 4 “[A] magistrate judge ha[s] authority to deny [a] motion for default judgment.” Franklin v. Parnell, 461 F. App’x 823 , 825 n.2 (11th Cir. 2011) (citing 28 U.S.C. § 636 (b)(1)(A)); see also Baker v. Warner / Chappell Music, Inc., No. 14-ev-22403, 2015 WL 1534522 , at *1n.1 (S.D. Fla. Apr. 6, 2015) (unpublished) (finding same) (citations omitted).