Opinion
2:17-cv-01788-JAD-PAL
08-04-2017
Steven Ringelberg, Plaintiff v. Vanguard Integrity Professionals-Nevada, Inc., et al., Defendants
Order Denying Motions for Default Judgment and to Strike
[ECF Nos. 32, 38]
Plaintiff Steven Ringelberg filed a "Motion for Entry of Judgment" asking this court to enter judgment against the defendants under FRCP 55(b)(2) as to liability and "set a schedule for discovery and a trial on damages only" because the defendants have not answered his second amended complaint. There are multiple problems with this request, each of which independently requires its denial.
ECF No. 32.
First, plaintiff skipped a required step. Rule 55 of the Federal Rules of Civil Procedure, which governs defaults and default judgments, requires that a default be entered before a default judgment can be requested. Because no default against the defendants has been requested or entered, plaintiff's request for a default judgment is early.
As the Ninth Circuit Court of Appeals has stated, Rule 55 requires a "two-step process" consisting of: (1) seeking a clerk's entry of default, and (2) filing a motion for the entry of default judgment. See, e.g., Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) ("Eitel apparently fails to understand the two-step process required by Rule 55."); accord Symantec Corp. v. Global Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009) (noting that Rules 55(a) and (b) provide a two-step process for obtaining a default judgment).
Second, even if I construe this motion as one for entry of default, it lacks merit. Rule 55(a) directs the Clerk to default a party who "has failed to plead or otherwise defend." "A motion to dismiss constitutes defending an action within the meaning of this rule even if the defendants have not filed answers to the complaint." And the defendants have filed motions to dismiss, entered into a stipulation to transfer this case from the District Court for the District of Columbia to this district, and filed a new motion to dismiss the same day that plaintiff's motion for judgment was filed. These filings demonstrate an intention to defend and preclude the entry of default.
Fed. R. Civ. P. 55(a) (emphasis added).
Song v. Deeds, 947 F.2d 951 (9th Cir. 1991) (unpublished).
ECF Nos. 15, 20, 21, 34.
Finally, before granting a request for default judgment, the court must evaluate several factors including: "(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits." Plaintiff has not addressed these factors at all, let alone demonstrated why they favor default judgment here. I thus deny the motion for default judgment.
Eitel v. McCool, 782 F.2d at 1471-72.
Plaintiff has also moved to strike the defendants' motion to dismiss, arguing that it is procedurally improper. I find that this procedural objection should be included as an argument in opposition to the motion to dismiss, not as a motion to strike the motion. Accordingly, I deny the motion to strike and direct the plaintiff to simply include this procedural objection as an argument in his opposition to the motion to dismiss.
ECF No. 38.
ECF No. 34. --------
ORDER
Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion for Judgment [ECF No. 32] is DENIED;
IT IS FURTHER ORDERED that Plaintiff's Motion to Strike Defendants' Rule 12(b)(6) Motion and Any Supporting Pleadings or Exhibits [ECF No. 38] is DENIED. Plaintiff is instructed to incorporate the subject of the motion to strike into his opposition to the motion to dismiss [ECF No. 34].
Dated this 4th day of August, 2017
/s/_________
Jennifer A. Dorsey
United States District Judge