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Lucy, Esq.
Lucy, Esq., Attorney
Category: Legal
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Experience:  Lawyer
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If a U.S. District Court states in an Order that a Default

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If a U.S. District Court states in an Order that a Default Judgment was entered in favor of a Plaintiff and it never actually was, and at the same time denies a Plaintiff's Motion(s) for Default Judgment (three different motions for the judgment) via the same Order while citing ONE case law (ANHEUSER-BUSCH, INC., Plaintiff-Appellant, v. Irvin P. PHILPOT, III, Defendant-Appellee) to do so, it is an abuse of discretion in lieu of such determination? In said scenario the Plaintiff never received a DJ although the Court said it was entered via Order and removed it pursuant to aforementioned case. Thank you for your time and efforts in regards XXXXX XXXXX matter and issue...
Submitted: 6 years ago.
Category: Legal
Expert:  Lucy, Esq. replied 6 years ago.

My name is XXXXX XXXXX I'd be happy to answer your questions today.

If I understand you correctly, it sounds like the judge is saying that a default judgment was entered, then removed and the judge denied the request for a default on the same grounds that the original default was removed - which is that case. You may want to take a look at the docket if you were never notified of the default - even if it was entered and removed, it should show up there.

As far as the original question, it's very hard to prove abuse of discretion. It is a standard that is extremely deferential to the judge. Without all the facts, it's had to say, but you can argue that he abused his discretion by (a) removing the default in the first place, if that's what happened, and (b) refusing to allow you to enter it, assuming that the defendant failed to respond to the Complaint (and it sounds like he did). One thing that would support this argument is if the facts of that case are radically different from the facts of your case. You can also argue that the narrow issue in Anheuser-Busch - whether the judge abused his discretion in requiring an evidentiary hearing - is not related to your case at all.

Good luck.
Customer: replied 6 years ago.

A. Court Ordered for More Definite Statement and it was submitted on Feb 2
B. Def. responded 16 days later with FRCP 12 b 6 motion which goes against FRCP 12 e stating that it must be within 14 days...
C. Plaintiff had Clerk's Entry of Default entered in on same day (i.e. 16 days later on Feb 18 which can be clearly seen on Docket) pursuant to FRCP 55 a

The discrepency entails how the Clerk's Entry of Default (55 a) was docketed on Feb 2 and sat there for a period of some four months without any clarification as to its validity; in the said four months Plainitff filed three separate motions for DJ (two pursuant to FRCP 55 b 1 and the last one in accordance with FRCP 55 b 2); when an Order was finally issued by the Court four months later about it, the Order stated that a DEFAULT JUDGMENT had been entered in favor of the Plaintiff and at same time denied all three motions for DJ mentioned herein; the truth of the matter is that only the Clerk's Entry of Default was actually entered in and the Default Judgment along with any type of evidentary hearing never occurred; Moreover, the Order even called the Clerk's Entry of Default and Default Judgment the same numbered Docket which again seems unjust and an abuse of discretion; the only case cited in that Order for such action to be taken was (ANHEUSER-BUSCH, INC., Plaintiff-Appellant, v. Irvin P. PHILPOT, III, Defendant-Appellee in the Eleventh Circuit Court of Appeals = in this case a DJ was entered in an evidentary hearing was held, something that never had occurred in case mentioned herein

I hope this clarifies the situation a little bit and I hope that you can aid and assist me with this matter and scenario...Thanks again for your time and your efforts...
Expert:  Lucy, Esq. replied 6 years ago.
You can look for a case that says it's an abuse of discretion, but I don't know if you'll find one. The problem is, there's a preference in the legal system for deciding cases on their merits and not based on technicalities. So, the removal of a default is rarely going to be seen as an abuse of discretion, because the system is designed to give the defendant every opportunity to show up and defend himself.
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