Teresa McClendon v. ALS et al
Filing
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ORDER DENYING PLAINTIFFS REQUEST FOR DEFAULT JUDGMENT WITHOUT PREJUDICE 21 . PLAINTIFF HAS UNTIL OCTOBER 21, 2016 TO FILE AN AMENDED REQUEST FOR DEFAULT JUDGMENT 21 by Judge Otis D. Wright, II . (lc). Modified on 9/30/2016 (lc).
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United States District Court
Central District of California
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Plaintiff,
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Case No. 2:16-cv-01690-ODW-(PLA)
TERESA MCCLENDON,
ORDER DENYING PLAINTIFF’S
v.
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ALS aka ASSOCIATION LIEN
REQUEST FOR DEFAULT
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SERVICES; PARK HOMES AND THE
JUDGMENT [21]
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LOFTS COMMUNITY ASSOCIATION;
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and DOES 1–10 ,
Defendants.
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I.
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INTRODUCTION
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Plaintiff Teresa McClendon (“McClendon”), appearing pro se, requests default
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judgment against Defendant Association Lien Services (“ALS”). For the reasons
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discussed below, the Court DENIES McClendon’s Request for Default Judgment.
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(ECF No. 21.)
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II.
FACTUAL BACKGROUND
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This action arises out of ALS’ alleged violations of the Federal Fair Debt
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Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692–1692(p) (1977), and
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California’s Rosenthal Act, Cal. Civ. Code §§ 1788–1788.33 (2000). McClendon
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apparently incurred a personal debt to several home owner associations, which was
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later assigned to ALS. (Complaint (“Compl.”) ¶ 11, ECF No. 1.) It is unclear from
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the Complaint when the personal debt was incurred. McClendon claims that ALS sent
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her numerous unfair and deceptive notices threatening foreclosure if she did not repay
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the debt. (Id.) McClendon alleges that ALS could not lawfully mail her the letters
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because its corporate license was suspended. (Id.¶ 14.) She also alleges that ALS
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fraudulently represented itself as a law firm in certain collection letters. (Id. ¶ 15.)
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However, McClendon has not attached copies of any of these notices to either her
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Complaint or her Request for Default Judgment (the “Request”). (Request for Default
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Judgment (“Req.”), ECF No. 21.)
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McClendon is a fashion designer, and she claims that ALS’ actions and a
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subsequent “lock-out” from her property have prevented her from recovering her
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fashion inventory, including “tools, custom patterns, designer fabric books” and more.
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(Declaration in Support of Plaintiff’s Request for Entry of Default Judgment (“Decl.”)
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¶ 22, ECF No. 21.) But McClendon provides precious few details regarding the
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alleged “lock-out” and how ALS was involved. In all of her filings with the Court,
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McClendon never mentions when the lock-out occurred, what property was locked-
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out, whether she paid money to ALS because of the notices, whether ALS started any
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foreclosure proceedings, or many other crucial details.
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ALS has not appeared in this action. Accordingly, McClendon sought an entry
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of default against ALS, which was entered by the Clerk of Court on May 2, 2016.
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(ECF No. 13.) McClendon filed an initial Request for Default Judgment on June 20,
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2016, which was denied by the Court’s Notice of Deficiency the next day. (ECF Nos.
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18, 19.) On July 12, 2016, McClendon filed the present Request. In her Declaration
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in Support of Plaintiff’s Request for Entry of Default Judgment (the “Declaration”),
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McClendon asks the Court to enter default judgment on her FDCPA and Rosenthal
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Act claims in the amount of $1,861,797.63. (Decl. ¶ 12.)
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III.
LEGAL STANDARD
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Federal Rule of Civil Procedure 55(b) authorizes a district court to enter a
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default judgment after the Clerk enters a default under Rule 55(a). Aldabe v. Aldabe,
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616 F.2d 1089, 1092 (9th Cir. 1980). Upon entry of default, the defendant’s liability
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generally is conclusively established, and the well-pleaded factual allegations in the
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complaint are accepted as true. Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–
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19 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. Grp., 559 F.2d 557, 560
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(9th Cir. 1977)).
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In exercising its discretion, a court must consider several factors (the “Eitel
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Factors”): “(1) the possibility of prejudice to plaintiff; (2) the merits of plaintiff’s
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substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake
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in the action; (5) the possibility of a dispute concerning material facts; (6) whether the
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defendant’s default was due to excusable neglect; and (7) the strong policy underlying
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the Federal Rules of Civil Procedure favoring decisions on the merits.” Eitel v.
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McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986).
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Before a court can enter a default judgment against a defendant, the plaintiff must
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satisfy the procedural requirements set forth in Fed. R. Civ. P. 54(c) and 55, as well as
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Local Rule 55-1. Local Rule 55-1 requires that the movant submit a declaration
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establishing: (1) when and against which party the default was entered; (2)
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identification of the pleading to which the default was entered; (3) whether the
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defaulting party is a minor, incompetent person, or active service member; and (4) that
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the defaulting party was properly served with notice if required. Vogel v. Rite Aid
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Corp., 992 F. Supp. 2d 998, 1006 (C.D. Cal. 2014).
IV.
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DISCUSSION
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While McClendon has satisfied the procedural requirements for an entry of
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default judgment, the Eitel factors weigh against the entry of a default judgment in her
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favor.
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A.
Procedural Requirements
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Though McClendon did not satisfy the procedural requirements of Local Rule
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55-1 in her initial Request for Default Judgment (ECF No. 18), she has corrected the
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deficiency by attaching her Declaration to the present Request.
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Declaration establishes that (1) the default was entered on May 2, 2016 against ALS,
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(2) the default was entered to her Complaint, (3) ALS is not a minor, incompetent
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(Decl.)
The
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person, or active service member, and (4) ALS was properly served. (Id. ¶¶ 2–6.)
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Thus, McClendon has met the basic procedural requirements, and the Court moves on
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to evaluate the Eitel factors to determine if they weigh in favor of granting the
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requested default judgment.
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B.
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Eitel Factors
The Court finds that the Eitel factors weigh against entering a default judgment
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in McClendon’s favor. See Eitel, 782 F.2d at 1471-72. It is true that, assuming proper
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proof of her claims, McClendon would suffer prejudice if her Request were not
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granted because she “would be denied the right to judicial resolution of the claims
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presented, and would be without other recourse for recovery.” Electra Entm’t Grp.
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Inc. v. Crawford, 226 F.R.D. 388, 392 (C.D. Cal. 2005). But most of the other
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factors–especially the merits of McClendon’s substantive claims, the sufficiency of
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her complaint, and the possibility of a dispute concerning material facts–weigh against
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a default judgment.
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First, it is unclear if McClendon’s claims have any merit. McClendon failed to
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submit any tangible evidence showing that ALS made statements in violation of the
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FDCPA or the Rosenthal Act. Instead, almost the entirety of the facts discussed in her
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Complaint and Request have nothing to do with the collection letters that her claims
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are actually based upon. (See Compl.; Req.) Second, the Court finds that the
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allegations McClendon did make in her Complaint are insufficient to establish the
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merits of her claims without further evidence. While pleadings are admitted as true on
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default, McClendon’s pleadings do not sufficiently allude (much less with the factual
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specificity required under Twombly and Iqbal to survive a motion to dismiss) to how
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ALS actually violated the FDCPA and the Rosenthal Act. (See Decl. ¶ 22; Req. 6);
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Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662
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(2009). Instead, McClendon discusses things like not having access to her design
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team’s meeting place or supplies and the emotional toll the “lock-out” took on her.
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(See Decl. ¶¶ 18, 22). Third, there is a significant potential for dispute over material
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facts since McClendon claims to cite ALS’ alleged notices but has not attached them
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to her Complaint or Request. (See Req. 4.) The Court therefore has no proof of what
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the notices actually say. Should ALS appear, it could dispute the contents of the
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notices because they have not yet been included in McClendon’s papers.
The Court therefore finds that the Eitel factors evaluating the merits of
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McClendon’s substantive claims, the sufficiency of her Complaint, and the possibility
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of a dispute concerning material facts weigh against entry of default judgment.
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Further, it is unclear what amount of money is actually at issue, as McClendon has
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provided no evidentiary support for the damages calculations in her Declaration. For
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example, as one part of her overall $1,861,797.63 damages claim, McClendon seeks
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$520,000.00 for loss of income due to ALS’ alleged FDCPA and Rosenthal violations.
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(Decl. ¶ 8(c)(1).) However, McClendon never explains why she is entitled to that
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specific amount of money or ever clearly articulates how her business was affected.
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(See id. ¶ 22.) Instead, McClendon extensively discusses a potential arrangement to
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design for Michelle Obama, without providing tangible details about said
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arrangement. (See id. ¶¶ 13–21.) Confusingly, she later asserts that she was denied
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$72,000,000.00 of future income because of the “lock-out” without ever providing any
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evidence supporting that figure. (Id. ¶ 23.) Like her Complaint and her Request, the
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damages calculations in McClendon’s Declaration suffer from a fatal lack of
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specificity.
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While it is possible that the remaining Eitel factors weigh in favor of liability,
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these factors are meaningless absent some proof of McClendon’s claims.
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McClendon’s Request for Default Judgment is therefore DENIED as to liability. The
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Court need not further consider McClendon’s requested damages because they are
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contingent on a finding of liability.
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C.
Leave to Amend
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District courts have the discretion to deny a motion for default judgment
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without prejudice due to the motion’s omissions and inconsistencies. See TI Beverage
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Grp. Ltd. v. S.C. Cramele Recas SA, No. LA CV 06-07793-VBF, 2014 WL 12013438,
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at *1 (C.D. Cal. Oct. 10, 2014); Rhuma v. Libya, No. 2:13–cv–2286 LKK AC PS,
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2014 WL 1665042, at *1 (E.D. Cal. Apr. 24, 2014) (“[T]he undersigned
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recommended that the first motion for default judgment be denied without prejudice
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due to numerous inadequacies in the motion”), R&R adopted, Rhuma v. Libya, No.
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2:13–cv–2286 LKK AC PS, 2014 WL 2548861 (E.D. Cal. June 5, 2014). Courts in
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the Ninth Circuit generally provide parties three weeks to amend a motion for default
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judgement that has been dismissed without prejudice. See TI Beverage, 2014 WL
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12013438, at *1 (“The Court will afford plaintiffs three weeks to file an amended
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application for default judgment which complies with applicable Federal Rules and
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Ninth Circuit law governing applications for default judgment”).
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The Court again advises, as it has previously stated in its Self-Representation
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Order, that litigating an action in federal court often requires a great deal of time,
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preparation, knowledge, and skill and that it highly recommends against proceeding
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without the assistance of counsel.
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Complaint arise from a lack of clear legal reasoning and marshalling of facts, this
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Court again recommends that McClendon utilize legal counsel.
V.
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Given that the majority of issues with the
CONCLUSION
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For the reasons discussed above, the Court DENIES McClendon’s Request for
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Default Judgment without prejudice. McClendon has until October 21, 2016, to file
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an amended Request for Default Judgment.
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IT IS SO ORDERED.
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September 30, 2016
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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE
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