United States District Court, E.D. Wisconsin
ORDER GRANTING MOTION FOR PARTIAL DEFAULT JUDGMENT
AND JUDGMENT ON THE PLEADINGS (DKT. NO. 31)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
plaintiff filed a motion for partial default judgment and
judgment on the pleadings under Rules 55 and 12(c) of the
Federal Rules of Civil Procedure. Dkt. No. 31. The plaintiff
moved for default judgment against defendants Mighty Fine
Cattle Company LLC, Travis and Emily Krueger, Farmers Grain
& Feed LLC, Kettle-Lakes Cooperative, Marvin Rate, David
Thompson, Capital One Bank USA NA, and Fisher & Thompson,
and for judgment on the pleadings against PHI Financial
Services, Inc. and Serwe Implement Co., Inc. None of these
defendants responded to the motions. Defendant Fond du Lac
County, who holds a prior interest to the plaintiff on the
property, filed an objection to the motions but later reached
a stipulation with the plaintiff. Dkt. Nos. 34, 36. On
October 31, 2017, the plaintiff filed a notice of abandonment
of the mortgaged property. Dkt. No. 37.
the motion for default judgment and the motion for judgment
on the pleadings are unopposed.
Plaintiffs Motion for Partial Default Judgment and Judgment
Standard of Review for Motion for Default Judgment
Rule of Civil Procedure 55 requires a two-step process before
the entry of default judgment. A party first must seek an
entry of default based on the opposing party's failure to
plead. Fed.R.Civ.P. 55(a). Here, the plaintiff requested the
entry of default on August 11, 2017 (dkt. no. 27), and the
clerk of court entered default on August 14, 2017. After the
entry of default, a plaintiff may move for default judgment
under Rule 55(b). Fed.R.Civ.P. 55(b). When the court
determines a defendant is in default, the court takes as true
the factual allegations in the complaint. Black v.
Lane, 22 F.3d 1395, 1399 (7th Cir. 1994).
Standard of Review for Motion for Judgment on the
considering a motion for judgment on the pleadings, the court
considers the complaint, answer and any written instruments
attached to those pleadings; accepts all well-pleaded
allegations in the complaint as true; and draws all
inferences in favor of the plaintiff. See Pisciotta v.
Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir.
2007); Forseth v. Village of Sussex, 199 F.3d 363,
368 (7th Cir. 2000).
Defendants Failed to Answer or Otherwise Plead
March 7, 2017, the plaintiff filed its complaint seeking to
foreclose by sale on real estate mortgages and chattel based
on promissory notes, security agreements, continuation states
and mortgages entered into by the defendants under the
statutes, rules and regulations of the Farm Service Agency.
Dkt. Nos. 1, 32 at ¶ 4. All of the defendants have been
served with the waiver of summons or the summons and
complaint. With the exception of PHI Financial Services, Inc.
and Serwe Implement Co., who both filed a notice of
entitlement to surplus funds (dkt. nos. 7, 18), none of the
defendants filed an answer, and the time for doing so has
plaintiff established service as follows:
1. Defendants Marvin Rate, John Howley (in his capacity as
attorney for defendant Kettle-Lakes Cooperative), and Daniel
Dineen (as registered agent for defendant Farmers Grain &
Feed LLC) signed and returned the waiver of service of
summons form on March 21, 2017. These defendants did not file
a responsive pleading by the May 15, 2017 deadline. Dkt. No.
32 at 1f5.
2. The United States Marshal personally served the Mighty
Fine Cattle Company LLC on May 25, 2017, and Emily and Travis
Krueger on May 31 2017. These defendants did not file a
responsive pleading by the June 21, 2017 deadline.
Id. at ¶ 6.
3. Finally, the United States Marshal personally served David
Thompson on June 6, 2017, and Thompson failed to respond by
June 27, 2017. The United States Marshal personally served
Capital One Bank USA NA on June 15, 2017 ...