818 F.2d 31: Unpublished Dispositionglynda Kay Mcdonald, Plaintiff-appellant, v. Dekalb Federal Savings and Loan, Billy P. Wofford,defendants-appellees
United States Court of Appeals, Sixth Circuit. - 818 F.2d 31
May 13, 1987
Before KEITH, KENNEDY and NORRIS, Circuit Judges.
The Plaintiff petitions for appellate review and Moves for a stay and for counsel on appeal from the district court's order in this diversity tort case. This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the plaintiff's brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
At the time she filed her complaint, the plaintiff was a resident of Michigan. The defendants are a savings and loan and a sheriff from the state of Georgia. The complaint alleges that the defendants subjected the plaintiff to false arrest, false imprisonment, and malicious prosecution. The savings and loan filed a motion for a more definite Statement which was granted by the district court. When the plaintiff failed to file an amended complaint within 30 days, the district court dismissed her case Without prejudice.
Approximately four months later, the plaintiff applied for entry of default judgment against the defendants. She also filed a motion for counsel. The district court denied the application for default judgment, and the plaintiff appealed.
The plaintiff's application for a default judgment before the district court is like a Rule 60(b), Federal Rules of Civil Procedure motion for relief from judgment. This court can reverse the denial of such a motion only for an abuse of discretion. In re Salem Mortgage Co., 791 F.2d 456, 459 (6th Cir. 1986).
An examination of the record shows that the savings and loan's motion for a more definite statement was late. However, the entry of default is the first procedural step necessary in obtaining a default judgment. Rule 55(a), Federal Rules of Civil Procedure; Shepard Claims Service, Inc. v. William Darrah & Associates, 796 F.2d 190, 193 (6th Cir. 1986). The plaintiff never filed an affidavit requesting the entry of default in this case. So the district court correctly held that she was not entitled to a default judgment. There was no abuse of discretion when the court denied the plaintiff's application.
The plaintiff also argues that it was improper for the district court to fail to decide her motion for counsel. Ray v. Robinson, 640 F.2d 474, 477-78 (3d Cir. 1981). Because the case had already been dismissed, there was no abuse of discretion when the district court did not explicitly rule on the motion.
The petition for appellate review and the motions for a stay and for counsel are denied. The order of the district court is affirmed under Rule 9(b)(5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.