Default Judgment Procedure
From Enobakhare v. Carpoint, LLC, 2010 U.S. Dist. LEXIS 141481 (E.D.N.Y. Jan. 10, 2011):
Rule 55(a) of the Federal Rules of Civil Procedure provides: "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed. R. Civ. P. 55(a). As a threshold issue, Rule 55 sets forth a two-step process which first requires the entry of a default, through a notation on the record that the party has defaulted, and then entry of a default judgment, which is the final action in the case. See Enron Oil Corn. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993). The court clerk automatically enters the default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, by notation of the party's default on the clerk's record of the case. See id. After a default has been entered against a party, if that party fails to appear or otherwise move to set aside the default pursuant to Rule 55(c), a default judgment may be entered. See Fed. R. Civ. P. 55(b).
It is well-settled that the burden is on the plaintiff to establish its entitlement to recovery. See Clague v. Bednarski, 105 F.R.D. 552 (E.D.N.Y. 1985). When a default judgment is entered, the defendant is deemed to have admitted all well-pleaded allegations in the complaint pertaining to liability. See Greyhound Exhibit Group, Inc. v. E.L.U.L. Realty Com., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506 U.S. 1080 (1993); Montcalm Publ'g. Com. v. Ryan, 807 F. Supp. 975, 977 (S.D.N.Y. 1992)(citing United States v. Di Mucci, 879 F.2d 1488, 1497 (7th Cir. 1989); Au Bon Pain Com. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981); Desbmukh v. Cook, 630 F. Supp. 956, 959 (S.D.N.Y. 1986); 6 Moore's Federal Practice ¶ 55.03 at 55-16 (2d ed. 1988)).
However, in order for the Court to grant plaintiff's request for a default judgment and to award damages, there must be [a determination by the Court that there is] federal jurisdiction over plaintiff's claims.*** This Court lacks subject matter jurisdiction over plaintiff's Complaint because (1) there is no diversity jurisdiction due to plaintiff's failure to satisfy the amount in controversy required by 28 U.S.C. § 1332; and (2) federal question jurisdiction is lacking because plaintiff has failed to adequately allege the elements of any of his federal claims. In the absence of both diversity jurisdiction and federal question jurisdiction, the Court may not exercise supplemental jurisdiction over plaintiff's state law claims pursuant to 28 U.S.C. § 1367. Accordingly, it is respectfully recommended that this action be dismissed for lack of subject matter jurisdiction.
See also our post of November 18, 2008.
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