Don Rose v. Abraham et al

Filing 112

ORDER Vacating Hearing and Order Directing Plaintiff to File signed by Magistrate Judge Jennifer L. Thurston on 10/20/2011. Filing Deadline: 11/4/2011. (Leon-Guerrero, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DON ROSE,

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Plaintiff,
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v.
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SAMUEL ABRAHAM, et al.,
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Defendants.
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_______________________________________ )

Case No.: 1:08-cv-00606 AWI JLT
ORDER VACATING THE HEARING ON THE
APPLICATIONS FOR DEFAULT JUDGMENT
ORDER DIRECTING PLAINTIFF TO FILE
SUPPLEMENTAL BRIEFING IN SUPPORT
OF THE APPLICATIONS FOR DEFAULT
JUDGMENT
(Docs. 103-108)

Don Rose (“Plaintiff”) seeks the entry of default judgment against Lance Slayton (Doc. 103);

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Landmark, Ltd. (Doc. 104); Steven Duce (Doc. 105); Roger Fontaine (Doc. 106); Samuel Abraham

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(Doc. 107); and Alice Duce (Doc. 108). The motions are unopposed.

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The Federal Rules of Civil Procedure govern applications to the Court for issuance of default

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judgment. Where a default was entered because “a party against whom a judgment for relief is

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sought has failed to plead or otherwise defend,” the party seeking relief may apply to the court for a

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default judgment. Fed.R.Civ.P. 55(a)-(b). An application for default judgment qualifies as a motion

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before the Court. Johnson v. Cate, 2009 U.S. Dist. LEXIS 57942, at *2 (E.D. Cal. June 23, 2009).

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Thus, the motion “should include briefs on the pertinent issues.” Id.; see also Local Rule 230(b)

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(“The moving party shall file a notice of motion, motion, accompanying briefs, affidavits, if

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appropriate, and copies of all documentary evidence that the moving party intends to submit in

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support of the motion.”).
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In this case, Plaintiff has not filed briefing for the Court’s consideration in support of the

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motions for default judgment or argued he has met the factors governing the entry of default

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judgment set forth by the Ninth Circuit in Eitel v. McCool, 782 F.2d 1470, 1472-72 (9th Cir. 1986).

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Most importantly, Plaintiff has not explained the requested damages in adequate detail such that the

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Court can determine he is entitled to the amount requested of $4,369,868.54. In his declaration,

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Plaintiff asserts his actual damages totaled $1,091,312.71. (Doc. 103-1). Plaintiff requests

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“judgement in that amount plus enhancement to the judgment under the statutes [he has] sued

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under,” including the Racketeer Influenced and Corrupt Organizations Act. Id. Further, Plaintiff

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requests that the Court impose punitive damages. Id.

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Because Plaintiff has not explained the damages award sought in the applications for default

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judgment or provided briefing in support thereof, Plaintiff will not be given the opportunity to do so.

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Upon receipt of the supplemental briefing, the Court will revisit whether default judgment is

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appropriate by weighing factors set forth by the Ninth Circuit. Oral arguments on the applications

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will be re-set by the Court as needed.

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Accordingly, IT IS HEREBY ORDERED:

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1.

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The hearing on the applications for default judgment set for October 31, 2011, is
VACATED; and

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Plaintiff SHALL FILE` points and authorities in support of the motion for default
judgment, addressing the issues set forth above, no later than November 4, 2011.

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21 Dated: October 20, 2011
9j7khi
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/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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