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Am/Ns Calvert LLC v. PSL, Ltd.

United States District Court, S.D. Alabama, Southern Division

February 2, 2015

AM/NS CALVERT LLC, etc., Plaintiff,
v.
PSL, LTD., Defendant.

ORDER

WILLIAM H. STEELE, Chief District Judge.

The plaintiff has filed an application for entry of default. (Doc. 11). "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, " it is subject to entry of default. Fed.R.Civ.P. 55(a). But a defendant is under no obligation to plead or otherwise defend until and unless it is "served with the summons and complaint." Id. Rule 12(a)(1)(A)(i); accord Securities and Exchange Commission v. Wright, 261 Fed.Appx. 259, 261 (11th Cir. 2008). Thus, "[b]efore a default can be entered, ... the party must have been effectively served with process." 10 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2682 at 14 (3rd ed. 1998). And when service of process is at issue, "it [i]s proper for the court rather than the clerk to consider [the plaintiff's] request" for entry of default. Sandoval v. Bluegrass Regional Mental Health - Mental Retardation Board, 2000 WL 1257040 at *5 (6th Cir. 2000).

The defendant is an Indian corporation with its principal place of business in Mumbai. (Doc. 1, ¶ 3). The plaintiff attempted service pursuant to the Hague Convention. (Doc. 7). This is a relatively complex form of service, and the Court cannot determine from the plaintiff's one-sentence treatment of the issue, (Doc. 11-1, ¶ 3), that its requirements have been met.[1] Accordingly, the application for entry of default, construed as a motion for such relief, is denied without prejudice to the plaintiff's ability to file a properly supported motion.


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