United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff's Second Motion for Entry of
Default [Doc. No. 33] against three of the TXU Energy
Defendants. TXU Energy Defendants have filed a
response in opposition [Doc. No. 35]. For the following
reasons, the Court denies Plaintiff's Second Motion for
Entry of Default [Doc. No. 33].
November 13, 2017, the Court denied Plaintiff's First
Motion for Entry of Default [Doc. No. 15] and directed TXU
Energy Defendants to answer or otherwise respond to
Plaintiff's Complaint within 21 days from the date of the
Order. [Doc. No. 31]. Within the 21 days, TXU Energy
Defendants filed a Motion for Summary Judgment [Doc.
No. 32], on December 4, 2017.
December 5, 2017, Plaintiff filed his Second Motion for Entry
of Default [Doc. No. 33], asserting that three of the TXU
Energy Defendants had failed “to plead or otherwise
defend.” TXU Energy Defendants responded in opposition
[Doc. No. 35]. TXU Energy Defendants maintain that they have
complied with the Court's Order [Doc. No. 31] to
“answer or otherwise respond to Plaintiff's
Complaint within 21 days” by filing their Motion for
Summary Judgment on December 4, 2017.
decision whether to enter default judgment falls within the
Court's discretion. Dennis Garberg & Assoc., Inc.
v. Pack-Tech Int'l Corp., 115 F.3d 767, 771
(10th Cir. 1997). “The preferred disposition
of any case is upon its merits and not by default
judgment.” Gomes v. Williams, 420 F.2d 1364,
1366 (10th Cir. 1970). As the Tenth Circuit has
noted, default judgments are “a harsh sanction”;
they are not favored. M.E.N. Co. v. Control Fluidics,
Inc., 834 F.2d 869, 872 (10th Cir. 1987);
Cessna Finance Corp. v. Bielenberg Masonry Contracting,
Inc., 715 F.2d 1442, 1444 (10th Cir. 1983).
In fact, default judgment is normally “viewed as
available only when the adversary process has been halted
because of an unresponsive party.” In re
Rains, 946 F.2d 731, 732 (10th Cir. 1991).
Civ. P. 55(a) provides that a clerk must enter default when a
party “has failed to plead or otherwise defend.”
Pursuant to the Court's Order [Doc. No. 31], an answer or
responsive pleading was due December 4, 2017. On December 4,
2017, TXU Energy Defendants responded in the form of a motion
for summary judgment [Doc. No. 32].
to Fed.R.Civ.P. 56(a), “a party may file a motion for
summary judgment at any time until 30 days after the close of
all discovery, ” unless a different time is set by the
Local Rules or the Court orders otherwise. The 2009 Advisory
Committee Note provides that a party may “move for
summary judgment at any time, even as early as the
commencement of the action.” Fed.R.Civ.P. 56 advisory
committee's note. When a motion for summary judgment is
made solely on the pleadings, “it is functionally the
same as a motion to dismiss or a motion for judgment on the
pleadings.” Schwartz v. Compagnie General
Transatlantique, 405 F.2d 270, 273 (2d Cir. 1968).
Further, Fed.R.Civ.P. 12(d) allows a court to treat a motion
to dismiss that presents matters outside the pleadings as a
motion for summary judgment. Simply put, although TXU Energy
Defendants' filing of a motion denominated as one for
summary judgment is procedurally unorthodox, it is not barred
under the Federal Rules of Civil Procedure at this point in
the Court finds that TXU Energy Defendants have not failed to
plead or otherwise defend as required by Rule 55. See
Hise v. Philip Morris Inc., No. 99-5113, 2000 WL 192892,
at *3 (10th Cir. Feb. 17, 2000)
(unpublished) (“We believe a summary judgment
motion, seeking to dispose of all the issues of a case, is an
effort to ‘otherwise defend, ' and as such, is
sufficient to prevent default judgment.”); see
also 10A Wright, Miller & Kane, Federal Practice
& Procedure § 2682, at 15-17 (4th
ed. 2016) (explaining that motions challenging the
sufficiency of the pleadings are sufficient to
“otherwise defend”); 10 James Wm. Moore et
al., Moore's Federal Practice §
55.11[b], at 55-20 (3d ed. 2017) (explaining that other
preliminary motions, such as a motion for summary judgment,
may constitute “otherwise defending” if the
motion indicates that the party is actively defending against
Rashidi v. Albright, the United States District
Court for the District of Nevada held that a motion for
summary judgment was sufficient to prevent default, even
though the defendant had not filed an answer.
Rashidi, 818 F.Supp. 1354, 1356 (D. Nev. 1993).
“[C]learly a summary judgment motion which speaks to
the merits of the case and demonstrates a concerted effort
and an undeniable desire to contest the action is sufficient
to fall within the ambit of ‘otherwise defend' for
purposes of Fed.R.Civ.P. 55.” Id.
district court's conclusion was affirmed by the Ninth
Circuit. Rashidi v. Albright, No. 93-15623, 1994 WL
594637, at *4 (9th Cir. Oct. 31, 1994)
(unpublished) (“We agree with [the district
court's] reasoning that if responses that do not even go
to the merits of the case can prevent the entry of default,
then surely a summary judgment motion, which seeks to dispose
of all of the issues of the case should suffice to prevent a
Energy Defendants' Motion for Summary Judgment shows a
continuation on their part to defend themselves against the
Complaint. They raise several defenses in their
motion, including subject matter jurisdiction, the statute of
limitations, and the naming of improper parties. [Doc. No.