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Act 20: I Move To Dismiss the Default Request

The best defense, they say, is a good offense. Why should I sit around all day and wait for Ms. Greenberg's attacks to show up on my fax machine? It was time to file some motions of my own. Of course, I freely admit that I had no idea of what I was doing. But that hadn't stopped me from responding to motions – so why should that stop me from creating some of my own? This burst of creative energy was a direct result of something that Ms. Greenberg had said in one of her motions, a reference to "the Federal Rules of Civil Procedure." Unlike most of the other people who file documents in US District Court, I didn't even know that there were rules of civil procedure, federal or otherwise. But now that Ms. Greenberg had let this top-secret information (heretofore revealed only to those in the highest echelons of the legal priesthood, and then only under an oath of extreme secrecy) out of the bag, I decided to look them up and see what they were all about. I located the rules on the Internet at: http://www.law.cornell.edu/rules/frcp/overview.htm As I skimmed through them, I thought that I spotted a couple of things that Ms. Greenberg might have done wrong. I didn't know that for a fact, of course, but there was only one way to find out... On October 22, 2001, I filed this snappy little motion to dismiss Ms. Greenberg's request for a default judgment on the grounds that she had filed it incorrectly. (Note: I have not included the "Certificate of Service.") UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION THE TAUBMAN COMPANY LIMITED PARTNERSHIP,   Plaintiff,       Civil Action No. 01-72987 v.   Honorable Lawrence P. Zatkoff WEBFEATS and HENRY MISHKOFF, Magistrate Judge Komives   Defendants.   DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S REQUEST TO ENTER DEFAULT On or about October 15, 2001 (the document is not dated), in a document addressed to the "Clerk of the Court," Plaintiff requested "that the clerk of the above-entitled Court enter default in this matter." However, the Federal Rules of Civil Procedure require that such request be submitted to the Court, and that such request specifically must not be submitted to the clerk. Quoting from Rule 55 (Default): b) Judgment. Judgment by default may be entered as follows: (1) By the Clerk. When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person. (2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor... Because this case is not "for a sum certain or for a sum which can by computation be made certain," Plaintiff's request should have been directed to the Court, rather than to the clerk. Defendants therefore respectfully request that the Court dismiss Plaintiff's request to enter default. Also, Defendants have subsequently answered the Complaint, so the issue is now moot, and there is no reason for Plaintiff to submit their Request to the correct party. Respectfully submitted, Henry Mishkoff WebFeats 2661 Midway Road, #224-225 Carrollton, TX 75006 972.931.5421 Defendants Dated: October 22, 2001

©2001 Hank Mishkoff
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