Case Information
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
ERICA DENSON,
Plaintiff, vs. CASE NO. 3:06-cv-1004-J-33HTS HSBC AUTO FINANCE, INC.,
etc., and SEARCH
INTERNATIONAL, INC.,
Defendants. O R D E R
This cause is before the Court on the following matters: The Motion to: Default for Final Judgment (Doc. #3; Motion for Default). Rule 55(a), Federal Rules of Civil Procedure (Rules(s)), provides for entry of a clerk's default "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend[.]" In this case, a motion to dismiss has been filed, which seeks, pursuant to Rule 12(b), dismissal of "Plaintiff's Complaint for failure to state a claim upon which relief can be granted." HSBC Auto Finance Inc.'s Motion to Dismiss (Doc. #7; Motion to Dismiss) at 1. This motion satisfies the requirement that Defendant HSBC Auto Finance, Inc., plead or otherwise defend. Martinez v. Sulner , No. 04 Civ. 2728 LTS/DFE, 2006 WL 737137, at *2 (S.D.N.Y. Mar. 23, 2006) ("'It is undisputed that motions challenging a complaint for failure to state a claim upon which relief can be granted [under Federal Rule of Civil Procedure 12], fall squarely within the ambit of the phrase "otherwise defend" [under Federal Rule of Civil Procedure 55][.]'") (first and second alterations in original) (parenthetically quoting Ricciuti v. New York City Transit Auth. , No. 90Civ. 2823(CSH), 1991 WL 221110, at *1 (S.D.N.Y. Oct. 3, 1991)).
It is further noted that, although the Motion for Default was originally filed in state court and then removed with the case to federal court, it fails to comply with both state and local federal rules requiring filings to be signed. See, e.g., Rule 1.05(d), Local Rules, United States District Court, Middle District of Florida (Local Rule(s)); Rule 2.060(d), Florida Rules of Judicial Administration. [1]
Accordingly, the Motion for Default (Doc. #3) is DENIED . Defendant HSBC Auto Finance, Inc.'s Motion for Extension of Time to File Answer to Plaintiff's Complaint (Doc. #5; Motion for Extension). No response has been filed in opposition thereto, and the time for doing so has passed. Local Rule 3.01(b). Upon consideration, the Motion for Extension (Doc. #5) is GRANTED to the extent the Motion to Dismiss is deemed properly filed.
DONE AND ORDERED at Jacksonville, Florida this 6th day of December, 2006.
/ s/ Howard T. Snyder HOWARD T. SNYDER UNITED STATES MAGISTRATE JUDGE Copies to:
Counsel of Record and
pro se parties, if any
[1] The parties are also reminded that future motions should comply with Local Rule 3.01(a), which directs a movant to include in every "motion or other application for an order . . . a memorandum of legal authority in support of the request[.]" Failure to do so may result in the non-compliant motion being stricken.