Summary
denying plaintiff's request for default arising out of social security appeal on the ground that it was premature, where plaintiff had only filed a complaint and a motion for entry of default
Summary of this case from Cummins v. Soc. Sec. Admin.Opinion
Civ. A. No. 27194.
October 8, 1962.
W.J. Krencewicz, Shenandoah, Pa., for plaintiff.
Drew J.T. O'Keefe, Merna P. Bearman, Philadelphia, Pa., for defendant.
In this matter, an appeal from a disallowance of a social security claim, plaintiff has moved for default judgment on the ground that the defendant has failed for more than a reasonable time to file an answer.
F.R.Civ.P. 55(e) provides: "No judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes his claim or right to relief by evidence satisfactory to the court." Clearly, mere failure on the part of the United States to answer is no ground for entry of judgment against it. If plaintiff proceeds to establish his claim, and then satisfies the court as to waiver of sovereign immunity and service on the defendant, judgment may be entered against the defendant despite failure to appear. Cf. Rank v. (Krug) United States, 142 F. Supp. 1, (S.D.Cal., 1956). Having filed only his complaint, plaintiff's motion must be denied as premature.