United States District Court, D. New Mexico
John Williams, ELLEN B. WILLIAMS and BELLEVIEW VALLEY LAND Co., Inc., Petitioners,
HON. DAVID T. THUMA, United States Bankruptcy Judge-United States Bankruptcy Court for the District of New Mexico, Respondent.
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
MATTER comes before the Court upon Petitioners' Motion
for Default Judgment Pursuant to FRCP 55, filed May 11, 2017
(Doc. 9). Having reviewed the parties'
briefs and the applicable law, the Court finds that
Petitioners' motion is not well-taken and, therefore, is
motion, Petitioners Belleview Valley Land Co. and John and
Ellen Williams (“Petitioners”) seek default
judgment against Tammy Sprague, the Personal Representative
of the Estate of Fred Van Winkle, deceased (hereinafter
background facts in the underlying case arise from Ms.
Sprague's allegations as plaintiff in an adversary
proceeding in Bankruptcy Court. In that proceeding, Ms.
Sprague alleged that Petitioners' actions in foreclosing
judgment liens in state court proceedings violated a
bankruptcy discharge that had been granted by the Bankruptcy
Court in the Chapter 7 case initiated by Fred Van Winkle
before his death. Petitioners challenged the Bankruptcy
Court's jurisdiction to hear the issue and moved to
dismiss the adversary proceeding, which motion was denied by
United States Bankruptcy Judge David T. Thuma (“Judge
Thuma”). Additionally, Judge Thuma entered a partial
summary judgment in the adversary proceeding. Petitioners
contend that the Bankruptcy Court lacked subject matter
jurisdiction over the adversary proceeding and on March 30,
2017 in the instant case, Petitioners filed a Petition for
Writ of Mandamus pursuant to Federal Rule of Appellate
Procedure 21(a) and 28 U.S.C. §1651
(“Writs”). Doc. 5 (See Am.Pet. for Writ
of Mandamus) at 2.
21of the Federal Rules of Appellate Procedure
(“FRAP”) states in part that: “a party
petitioning for a writ of mandamus must file a petition with
the circuit clerk with proof of service on all parties to the
proceeding in the trial court.” FRAP 21(a).
instant motion for default judgment, Petitioners do not seek
default judgment against the named Respondent, Judge Thuma,
but rather they seek default judgment against Ms. Sprague,
the Personal Representative of Fred Van Winkle's probate
estate. However, Ms. Sprague, as personal representative of
Mr. Van Winkle's probate estate, is not named as a
respondent or defendant in the caption of this case.
Petitioners counsel in the default motion (Doc. 9) represent
that Ms. Sprague, as personal representative, was personally
served with the Complaint and Summons on April 3, 2017, and
that Ms. Sprague was also served with an additional copy of
the Complaint and Summons on May 8, 2017. Petitioners contend
that under Fed.R.Civ.P.55, default judgment may be entered
against Ms. Sprague because she failed to plead or otherwise
defend this case.
are several reasons why this Court denies Petitioner's
motion for default judgment:
(1) Petitioners claim that they have served Ms. Sprague with
a copy of the Complaint and Summons, yet Petitioners have not
named Ms. Sprague as a party, even when the Petition was
amended (Doc. 5, Am. Pet.). The Court cannot understand why
Petitioners are trying to obtain default judgment against
someone who is not a party to this case. Moreover, FRAP 21(a)
certainly does not allow default judgment against someone who
is not a party to the proceeding.
(2) Petitioners' motion for default judgment cannot be
considered because Petitioners' counsel have not yet
sought or obtained a Clerk's entry of default under
Fed.R.Civ.P. 55(a). Before entering default judgment against
a defendant or respondent, the Court must find that such
defendant or respondent was properly served
in accordance with the Federal Rules of Civil Procedure and
subsequently failed to answer, defend, or otherwise appear in
the case within the time provided in the Rules. See
Rowley v. Morant, 276 F.R.D. 669, 670 (D.N.M., 2011)
(describing two-step process for a party seeking default
judgment under Rule 55); Hill Enterprises, Inc. v.
Lookingbill, 2012 WL 12931718, at *1 (D.N.M., 2012).
Thus, Petitioners' motion for default judgment is
premature, even assuming proper service on a properly named
(3) While Petitioners claim they have served Ms. Sprague, the
docket entries cited in support of service of process,
Documents 6 and 7 (see Doc. 9 at 1), do not indicate
that service has been effected on Ms. Sprague. Document
number 6 is an Affidavit of Service for Summons and Amended
Petition served on Judge Thuma on April 3, 2017. The
affidavit states in part that “copies were mailed to
all other parties via U.S.P.S. as follows: Tammy Sprague,
Personal Representative of the Fred Van Winkle Estate
… and to counsel for Ms. Sprague, Mr. Trey R.
Arvizu…. (Doc. 6). The summons which is attached as
page 2 of Document 6 is the summons directed to Judge Thuma,
not Ms. Sprague. Assuming Ms. Sprague could be served by U.S.
there is no indication that a summons directed to Ms. Sprague
was sent to her and since she is not listed as a party
defendant or respondent, she was not sufficiently put on
notice that she needed to file a responsive pleading to the
Petition. Additionally, there is no evidence that Ms.
Sprague's attorney was authorized to accept service on
her behalf so the fact that a copy of the Petition was mailed
to Attorney Arvizu is meaningless in terms of analyzing the
motion for default judgment. Document 7 is described as a
“Summons Returned Executed” and which is
“filed in error” but upon closer look, it is a
Summons directed to Judge Thuma, not Ms. Sprague.
However, page 2 of Document 7 is an “Amended Proof of
Service” for “Tammie Sprague as personal
representative of Estate of Fred
Williams.” It is not at all clear as to how a proof
of service form for Ms. Sprague ended up being grafted as
page 2 to the Summons directed to Judge Thuma. Moreover,
while the Court docket shows that a summons was issued by the
Court to Judge Thuma (text entry dated 3/30/2017), the docket
in this case is devoid of any reference that any summons was
ever issued to Ms. Sprague.In essence, Petitioners are
seeking default judgment against Ms. Sprague who is not named
as a defendant or respondent in this case and who was not
served with a summons. Against this backdrop, Petitioners
seek a default judgment even though they have not obtained a
Clerk's Entry of Default under Fed.R.Civ.P. 55(a).