Opinion
No. C-14-4426 MMC
05-07-2015
VII PEAKS CAPITAL LLC, Plaintiff, v. MICHAEL MATTHEW JARMAN, Defendant.
ORDER DENYING DEFENDANT'S "MOTION TO PROCEED FOR JURY TRIAL"
Before the Court is defendant Michael Matthew Jarman's "Motion to Proceed for Jury Trial," filed April 24, 2015, by which motion defendant requests the above-titled case proceed to "case discovery" and, thereafter, "go to a jury trial." (See Mot. at 2.) Plaintiff has not filed a response thereto.
On April 14, 2015, plaintiff filed a request to enter defendant's default, in which filing plaintiff established defendant had failed to appear or otherwise respond to the complaint within twenty-one days of the date of service of the summons and complaint. On April 15, 2015, the Clerk of Court entered defendant's default.
Defendant has not moved to set aside the default, see Fed. R. Civ. P. 55(c), much less obtained relief therefrom.
The effect of the entry of defendant's default is that "the factual allegations of the complaint, except those relating to damages, [are] taken as true." See Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977). With respect to the amount of damages, if any, to which plaintiff is entitled, the Court will consider the matter upon plaintiff's filing of a motion for default judgment. See Fed. R. Civ. P. 55(b)(2). Although defendant is entitled to file a response to such motion, see id., neither party is entitled to a jury trial on the issue of damages. See Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir. 1990).
Under the Civil Local Rules of this District, all motions, including a motion for default judgment, must be served on the opposing party no later than 35 days prior to the date of the noticed hearing, see Civil L.R. 7-2(a), and the opposing party must file with the Clerk of Court and serve on the moving party any response to the motion no later than 17 days after the motion is filed, if the motion was served by mail, or no later than 14 days after the motion is filed, if the motion was electronically served, see Civil L.R. 7-3(a).
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Accordingly, to the extent defendant's motion seeks discovery on the issue of liability and a jury trial, the motion is hereby DENIED. To the extent the motion may be seeking discovery on the issue of damages, the motion is hereby DENIED, without prejudice to defendant's specifying, in a response to any motion for default judgment, the particular discovery he seeks and the need therefor. See, e.g., Clague v. Bednarski, 105 F.R.D. 552 (E.D. N.Y. 1985) (granting defaulting defendant leave to take certain discovery as to damages prior to district court's considering plaintiff's motion for default judgment, where defendant specified particular discovery he needed).
IT IS SO ORDERED. Dated: May 7, 2015
/s/_________
MAXINE M. CHESNEY
United States District Judge