Roman, Jr. et al v. Travelers Home and Marine Insurance Company et al

Filing 27

ORDER: IT IS ORDERED that the motion for default judgment (Doc. #25 ) is denied. IT IS FURTHER ORDERED continuing the Rule 16 scheduling conference from September 27, 2017 to November 8, 2017 at 1:30 p.m. Plaintiff Jose Roman is still permitted to appear telephonically. All other counsel or pro se parties must appear in person [see attached Order for details]. Signed by Senior Judge James A Teilborg on 9/18/17.(MAW)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Jose Roman, Jr. and Stacy Roman,
Plaintiffs,

10
11

ORDER

v.

12

No. CV-17-08151-PCT-JAT

Travelers Home and Marine Insurance
Company, Alan D Schnitzer, and Brian W
MacLean,

13
14

Defendants.

15
16

I.

Motion for Default Judgment

17

Pending before the Court is Plaintiff Jose Roman’s motion for default judgment

18

against Defendants Alan D. Schnitzer and Brian W. MacLean. (Doc. 25). First, the

19

motion for default judgment is premature under Federal Rule of Civil Procedure 55(b)

20

because default has not been entered under Rule 55(a).

21

Second, while Plaintiff Jose Roman has filed an affidavit claiming he served the

22

individual Defendants by certified mail, Plaintiff has not filed a proof of service for either

23

Defendant. As noted in the motion for default, Defendant Travelers has previously stated

24

that the individual Defendants have not been served. Thus, if Plaintiff chooses to seek

25

enter of default under Rule 55(a), he must provide the return certified mail receipts

26

showing proof of service.

27

II.

28

Rule 16 Scheduling Conference
Additionally, the Court has set a Rule 16 scheduling conference for September 27,

1

2017. Because there is no proof of service, nor an appearance, for the two individual

2

Defendants, the Court finds good cause to continue the Rule 16 conference. See Fed. R.

3

Civ. Pro. 16(b)(2). Thus, the conference will be continued to November 8, 2017. If

4

Plaintiff has not filed proof of service for the individual Defendants prior to this new

5

Rule 16 conference, any non-served Defendant will be dismissed under Federal Rule of

6

Civil Procedure 4(m). Further, the parties are required to file a new proposed case

7

management plan (by October 27, 2017) that includes any newly served defendants,

8

consistent with this Court’s August 10, 2017 Order.

9

III.

Conclusion

10

Based on the foregoing,

11

IT IS ORDERED that the motion for default judgment (Doc. 25) is denied.

12

IT IS FURTHER ORDERED continuing the Rule 16 scheduling conference

13

from September 27, 2017 to November 8, 2017 at 1:30 p.m. Plaintiff Jose Roman is still

14

permitted to appear telephonically. All other counsel or pro se parties must appear in

15

person.

16

Dated this 18th day of September, 2017.

17
18
19
20
21
22
23
24
25
26
27
28

-2-