JOSEPH TAURO, District Judge
Presently before this court is Plaintiff's Motion for Re-Entry of Default Judgment Against Defendants John LeBrun, Stedman Briggs, and Richard Desjardins, as members of the Town of Upton Zoning Board of Appeals [#20], which is DENIED WITHOUT PREJUDICE to refiling. It is not appropriate to enter a default judgment at this time because Plaintiff did not first move for entry of default.
See United States v. $23,000 in United States Currency, 356 F.3d 157, 168 (1st Cir. 2004) ("`Prior to obtaining a default judgment under [Rule 55(b)], there must be an entry of default as provided by Rule 55(a).'") (quoting 10A Wright, Miller Kane, § 2682).
By this Motion, however, Plaintiff alerted this court to the fact that Defendants have not yet plead or otherwise defended against this action. Defendants also declined to file an opposition to this Motion. The clerk must therefore now enter Defendants' default. Thereafter, this court will entertain aMotion for Entry of Default Judgment on the condition that it complies with the District of Massachusetts' Standing Order Regarding Motions for Default Judgment, attached as Exhibit A to this Order. This court will also consider an opposition by the Third Party Intervenors at that time, if re-submitted.
See Fed.R.Civ.P. 55(a) ("When 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.").
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ___________________________ Plaintiff v. CIVIL ACTION NO. __________ ___________________________ Defendant
STANDING ORDER REGARDING MOTIONS FOR DEFAULT JUDGMENT
A Notice of Default has been issued to the above named defendant(s) upon request of the plaintiff(s) in the above entitled action.
In anticipation of a Motion for Entry of Default Judgment being filed, counsel are advised of the following requirements for submission of such motion in order to ensure compliance with Rule 55 of the Federal Rules of Civil Procedure:
1. A party making a motion for default judgment shall comply with all the requirements of Fed.R.Civ.P. 55 particularly those related to filing of affidavits. The moving party shall also submit an appropriate form of default judgment in the fashion of the draft order attached hereto as Appendix A. Such compliance shall be completed no later than 14 days after the filing of the motion itself;
2. Within the 14-day period for compliance by the moving party, the party against whom default judgment is sought shall have an opportunity to file substantiated opposition to the default judgment motion and to request a hearing thereon;
3. The Court will take up the motion for default judgment on the papers at the conclusion of the 14 day period. Should the motion for default judgment at that time fail to comply with Fed.R.Civ.P. 55, the motion will be denied with prejudice to any renewal of such motion within six months of the denial. Any renewed motion for default judgment may not include a request for interest, costs or attorneys' fees in the matter nor will such relief be granted on any renewed motion for default;
4. Necessary and appropriate action with respect to this Standing ORDER shall be taken by the moving party within 30 days of the date of the issuance of this ORDER. If for any reason the moving party cannot take necessary and appropriate action, that party shall file an affidavit describing the status of this case and show good cause why necessary and appropriate action with respect to this Standing ORDER cannot be taken in a timely fashion and further why this case should remain on the docket. Failure to comply with this paragraph will result in the entry of dismissal of the moving party's claims for want of prosecution.
Appendix A
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ___________________________ Plaintiff(s) v. CIVIL ACTION NO. __________ ___________________________ Defendant(s)
FORM OF DEFAULT JUDGMENT
________________________, D.J.
Defendant ________________________ having failed to plead or otherwise defend in this action and its default having been entered,
Now, upon application of plaintiff and affidavits demonstrating that defendant owes plaintiff the sum of$________________________ that defendant is not an infant or incompetent person or in the military service of the United States, and that plaintiff has incurred costs in the sum of $________________________.
It is hereby ORDERED, ADJUDGED AND DECREED that plaintiff recover from defendant __ ______________________ the principal amount of $___________________, with costs in the amount of$___________________ and prejudgment interest at the rate of _____% from _______________ ___ to __________ in the amount of$___________________ for a total judgment of $ _______ ___________________ with interest as provided by law. By the Court, Dated: _______________ ____________________ Deputy Clerk NOTE: The post judgment interest rate effective this date is _____%.