Opinion
Civil No. 99-997-FR
October 20, 2000
Raymond F. Thomas, Swanson, Thomas Coon, Portland, Oregon, Attorneys for Plaintiff.
Donald L. Aldrich, Gladwin, Michigan, President of Defendant.
OPINION AND ORDER
The matter before the court is the plaintiff's motion for judgment by default pursuant to Fed.R.Civ.P. 55 (#25).
On July 13, 1999, the plaintiff, Adam Z. Gourley, filed this action against the defendant, Custom Manufacturers, Inc., alleging claims for negligence and products liability.
On October 18, 1999, the defendant filed an amended answer to the complaint. The amended answer states, in part: "NOW COMES the Defendant, CUSTOM MANUFACTURERS, INC., In Pro Per, and as an Amended Answer to the Complaint — Negligence; Product Liability, states as follows. . . ." Amended Answer to Complaint, pp. 1-2. This amended answer was signed "By: Donald L. Aldrich, Its: President." Id. at p. 4.
On May 4, 2000, United States Magistrate Judge Janice M. Stewart filed the following order:
Defendant Custom Manufacturers, Inc. has appeared pro per in this case through its President, Donald L. Aldrich, who is not an attorney admitted to this court. However, "[c]orporations and other unincorporated associations must appear in court through an attorney." Licht v. America West Airlines (In re America West Airlines), 40 F.3d 1058, 1059 (9th Cir 1994). Therefore, defendant has proceeded improperly in this case and must retain an attorney if it intends to continue defending this case.
By June 26, 2000, defendant must retain an attorney in accordance with United States District Court for the District of Oregon Local Rule 83, namely an attorney who is admitted to practice before the bar of this court or who is specially admitted Pro Hac Vice to practice before the bar of this court. . . .
Order, May 4, 2000, pp. 1-2.
The defendant has made no further appearance in this matter.
On September 11, 2000, the plaintiff moved the court for an order granting judgment by default to the plaintiff pursuant to Rule 55 of the Federal Rules of Civil Procedure on the grounds that the defendant has not complied with the order of this court filed on May 4, 2000 requiring that the defendant retain an attorney in accordance with Local Rule 83 no later than June 26, 2000. The plaintiff further moves the court to set a hearing as to damages in accordance with Rule 55(b)(2) of the Federal Rules of Civil Procedure.
This court entered an order on September 11, 2000 requiring that the defendant file a response to the plaintiff's motion for judgment by default by October 10, 2000.
The defendant has filed no response.
RULING OF THE COURT
Rule 55(b)(2) of the Federal Rules of Civil Procedure provides, in relevant part:
(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor. . . . If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States.
The defendant has failed to comply with the order of this court filed on May 4, 2000. Further, the defendant has failed to make an appearance in this case which complies with the rules of the court and the applicable law. The plaintiff is therefore entitled to a judgment by default.
In order to determine the amount of damages to be included in a default judgment under Rule 55(b)(2), the court will conduct a hearing to allow the plaintiff to offer evidence on damages.
IT IS HEREBY ORDERED that the plaintiff's motion for judgment by default pursuant to Fed.R.Civ.P. 55 (#25) is GRANTED. An evidentiary hearing will be held on Monday, November 13, 2000, at 1:30 p.m. before United States District Judge Helen J. Frye to determine the amount of damages to be awarded to the plaintiff. Judgment in favor of the plaintiff will be entered thereafter.