Therefore, this court concludes that the state default judgment was not effective when signed by Justice Plumadore on November 18, 1993, and could have only become effective when entered by the clerk.
The plaintiffs have pointed out that during the short time between the filing of the Notice of Removal in federal court and the filing of a copy in the state court, both courts have concurrent jurisdiction. Hornung v. Master Tank & Welding Co., 151 F. Supp. 169, 172 (D.N.D. 1957). Nonetheless, once the removal procedures are completed by the filing of the Notice of Removal in the state court, "state jurisdiction ends and any further action in the state court is void." Barrett v. Southern Ry., 68 F.R.D. 413, 419 (D.S.C. 1975). In this case, a copy of the Notice of Removal was filed with the state court on November 22, 1993, two days prior to the state court's entry of the default judgment against defendant Jacobs. Therefore, the federal court had sole jurisdiction over this case prior to the state entry of the default judgment. See Metropolitan Casualty Ins. Co. v. Stevens, 312 U.S. 563, 61 S. Ct. 715, 717, 85 L. Ed. 1044 (1941) (noting that state court proceedings taking place after the filing of the petition of removal are void if that removal was proper).
Furthermore, Fed.R.Civ.P. 81(c) allows that in a removed action, the defendant who has not answered or otherwise appeared in the suit ay do so within 20 days of being served with the initial pleadings or within 5 days of filing the petition for removal, whichever period is longer. In this case, the defendant served his answer within 5 days of removing the suit to federal court, and so has properly answered under the federal requirements. Because defendant Jacobs filed his answer with the federal court within the proper time period, the Court Clerk denied plaintiffs' November 22, 1993 request to make an entry of default against him.
Prior to the issuance of a default judgment under Rule 55(b), there must be an entry of default pursuant to Rule 55(a). 10 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2682 (1983). According to the law of the case doctrine, a decision on an issue of law should govern the same issues throughout a case. DiLaura v. Power Auth. of NY, 982 F.2d 73, 76 (2d Cir. 1992). Although this doctrine is discretionary, generally it applies unless there is a serious reason for reconsideration such as "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Id., quoting, Virgin Atl. Airways v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). In this case, the plaintiffs have presented no such grounds for reconsideration of the Court Clerk's earlier denial of the application for an entry of default against defendant Jacobs. That being the case, the court continues to uphold the decision not to enter default under the law of the case doctrine. Thus, it is impossible to grant a default judgment because an entry of default is a necessary prerequisite.
Even if it could be shown that the state default judgment was validly entered, it is clear that a federal court has power under the general removal statute, 28 U.S.C. §§ 1441-1450, to set aside a state default judgment which was issued before removal so long as the removal was proper. Kizer v. Sherwood, 311 F. Supp. 809, 811 (M.D. Pa. 1970). Thus, even if it could be shown that the state default judgment became effective at the time of its signing, this court could subsequently vacate that order. Such action would be appropriate considering the fact that defendant Jacobs answered the complaint within 5 days of the removal to federal court, thus making his appearance in accordance with Fed.R.Civ.P. 81(c) and securing that he was never in default in the federal court. The default judgment could be properly lifted pursuant to Fed.R.Civ.P. 60(b) which allows such vacatur.
In conclusion, the court hereby denies plaintiffs' motion to enforce the state default judgment against defendant Jacobs and further denies any request to enter default and grant a federal default judgment against him. In doing so, based on the aforementioned facts, the court finds it proper to vacate the state court default judgment pursuant to Fed.R.Civ.P. 60(b)(4) on the basis that the judgment is void, thus granting the defendants' cross-motion.
IT IS SO ORDERED.
Dated June 13, 1994
at Binghamton, New York
Thomas J. McAvoy
Chief U.S. District Judge