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)

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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-

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