FRANKLIN v. THE JERSEY CITY HOUSING AUTHORITY ( 2024 )

NOT FOR PUBLICATION UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY EDWINA FRANKLIN, Civil Action No. 23-2002 (SDW) (CLW) Plaintiff, OPINION v. THE JERSEY CITY HOUSING March 26, 2024 AUTHORITY, SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Defendants. WIGENTON, District Judge. THIS MATTER having come before this Court upon pro se Plaintiff Edwina Franklin’s (“Plaintiff”) Second Motion for Default Judgment (D.E. 31 (“Motion”)) against Defendant the Jersey City Housing Authority (“the JCHA”) pursuant to Federal Rule of Civil Procedure (“Rule”) 55(b)(2); and WHEREAS Plaintiff filed her Complaint against the JCHA (D.E. 1) on April 5, 2023. She then filed an Amended Complaint (D.E. 9) on May 3, 2023. On June 20, 2023, Plaintiff obtained an entry of default against the JCHA for failure to plead or otherwise respond. To date, the JCHA has not filed an answer or otherwise defended itself in this action; and WHEREAS on September 20, 2023, Magistrate Judge Waldor entered an order to consolidate this action with Franklin v. Secretary, Department of Housing and Urban Development, 2:23-cv-20357-SDW-CLW. As a result, Plaintiff filed her Consolidated and Amended Complaint against the JCHA and Defendant Secretary, Department of Housing and Urban Development (“HUD”) in this action on October 17, 2023, (D.E. 17), and she filed proof of service upon the JCHA (D.E. 20) on November 7, 2023. The Consolidated and Amended Complaint alleges violations of the Fair Housing Act and the Equal Credit Opportunity Act by the JCHA and HUD. (See generally D.E. 17); and WHEREAS the Third Circuit has clearly stated that “[p]rior to obtaining a default judgment under either Rule 55(b)(1) or Rule 55(b)(2), there must be an entry of default as provided by Rule 55(a).” Husain v. Casino Control Comm’n, 265 F. App’x 130, 133 (3d Cir. 2008) (quoting 10A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 2682 (2007)); see also Nationwide Mut. Ins. Co. v. Starlight Ballroom Dance Club, Inc., 175 F. App’x 519, 521, n.1 (3d Cir. 2006) (same); and WHEREAS Plaintiff’s Motion fails for the same reason articulated in this Court’s January 23, 2024 opinion (D.E. 27) dismissing her first Motion for Default Judgment. At the time Plaintiff filed her Motion, an entry of default against the JCHA had not yet been issued under Rule 55(a). Because Plaintiff filed a Consolidated and Amended Complaint against the JCHA after this Court entered a default against the JCHA for failure to plead or otherwise respond, she must request a default against the JCHA from the Clerk’s Office again before she can move for default judgment. Accordingly, this Court will dismiss Plaintiff’s Motion; therefore Plaintiffs’ Motion is DISMISSED without prejudice. An appropriate order follows. /s/ Susan D. Wigenton SUSAN D. WIGENTON, U.S.D.J. Orig: Clerk cc: Parties Cathy L. Waldor, U.S.M.J.