Johnson v. Cate et al

Filing 66

ORDER DENYING Plaintiff's Motion for Leave to File an Amended Complaint Without Prejudice 59 . ORDER VACATING Hearing on Plaintiff's Motion and Application for Default Judgment and DEEMING Motion SUBMITTED for Decision [Docs. 51, 59]. Vacating Hearing Date: August 14, 2009. FINDINGS and RECOMMENDATIONS to DENY Plaintiff's Application for Default Judgment [Doc. 51]. Referred to Judge Wanger; Objections to F&R due by 8/19/2009. signed by Judge Sandra M. Snyder on 7/17/2009. (Herman, H)

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UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA 8 9 HOWARD JOHNSON, 10 Plaintiff, 11 v. 12 MATTHEW CATE, et al ., 13 14 15 16 17 18 19 Plaintiff is proceeding with a civil action in this Court. 20 Although Plaintiff presently proceeds with counsel, Plaintiff's 21 counsel's motion to withdraw as attorney of record is presently 22 set to be heard by Judge Oliver W. Wanger on August 3, 2009, at 23 which time a motion to dismiss filed by some defendants is also 24 set to be heard by Judge Wanger. Pending before the undersigned 25 Magistrate Judge is Plaintiff's motion for default judgment, 26 presently set to be heard by the Magistrate Judge on August 14, 27 2009, at the same time that Plaintiff's more recently filed 28 1 Defendants. ) ) ) ) ) ) ) ) ) ) 1:09-cv-00502-OWW-SMS ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT WITHOUT PREJUDICE (Doc. 59) ORDER VACATING HEARING ON PLAINTIFF'S MOTION AND APPLICATION FOR DEFAULT JUDGMENT AND DEEMING MOTION SUBMITTED FOR DECISION (DOCS. 51, 59) VACATED HEARING DATE: August 14, 2009 FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S APPLICATION FOR DEFAULT JUDGMENT (DOC. 51)

1 motion for leave to file an amended complaint is also set to be 2 heard. The matters have been referred to the Magistrate Judge 3 pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302, 724 302(c)(19), and 72-303. 5 Plaintiff's motion for default judgment against Defendant

6 Samantha Dennis was filed on June 11, 2009, along with a 7 declaration in support of the motion and a proposed order. The 8 Court issued an order for supplemental briefing on June 23, 2009. 9 On July 5, 2009, Plaintiff filed a response to the briefing order 10 that was combined with an application for leave to file a second 11 amended complaint, which Plaintiff also appeared to intend to 12 calendar for hearing on August 14, 2009. The response and motion 13 were supported by a declaration from Plaintiff's attorney, Norman 14 Newhouse, with exhibits, including a proposed second amended 15 complaint. In the response, there was no briefing of the issues 16 concerning default judgment that had concerned the Court and had 17 prompted the briefing order, namely, the legal sufficiency of the 18 complaint and resultant notice to warrant the relief requested in 19 the application. Defendants (other than the allegedly defaulting 20 Samantha Dennis) filed opposition to the motion to amend on the 21 grounds that the claims against Dennis did not meet the 22 requirements for permissive joinder and would prejudice the other 23 defendants. No reply has been filed, but the time for the filing 24 of the reply has not yet passed. 25 26 A court has inherent power to control its docket and the 27 disposition of its cases with economy of time and effort for both 28 2 I. Administrative Denial of Plaintiff's Motion for Leave to Amend

1 the court and the parties. Landis v. North American Co., 299 U.S. 2 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th 3 Cir. 1992). It is not efficient for the Court to consider 4 dispositive motions when the pleadings on which they are based 5 are not quiet. Further, the assertedly defaulting party is 6 arguably entitled to adequate notice of any amended pleading that 7 significantly changes the relief demanded. Although the motion to 8 dismiss that is to be heard before the District Judge concerns 9 other defendants, the District Judge could, and very likely will, 10 nevertheless address the matter of amendment in the course of 11 considering the motion to dismiss. 12 Accordingly, the Plaintiff's motion for leave to file an

13 amended complaint IS DENIED administratively, and without 14 prejudice to refiling a motion for leave to amend subsequent to 15 the District Judge's ruling on the motion to dismiss. Further, 16 the hearing on the motion IS VACATED. 17 18 II. Vacating the Hearing on the Motion for Default Judgment Pursuant to Rule 78-230(h) of the Local Rules of Practice

19 for the United States District Court, Eastern District of 20 California, the Court finds that the motion of Plaintiff for 21 default judgment is a matter that may appropriately be submitted 22 upon the record and briefs. 23 Accordingly, the hearing on the motion , presently set for

24 August 14, 2009, IS VACATED, and the motion IS DEEMED SUBMITTED 25 to the Court for decision. 26 27 III. Motion for Default Judgment With respect to the merits of the motion for default

28 judgment, it is established that a default judgment generally 3

1 bars the defaulting party from disputing the facts alleged in the 2 complaint, but the defaulting party may argue that the facts as 3 alleged do not state a claim. Alan Neuman Productions, Inc. v. 4 Albright, 862 F.2d 1388, 1392. Thus, well pleaded factual 5 allegations, except as to damages, are taken as true; however, 6 necessary facts not contained in the pleadings, and claims which 7 are legally insufficient, are not established by default. Cripps 8 v. Life Ins. Co. of North America, 980 F.2d 1261, 1267 (9th Cir. 9 1992); TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 10 (9th Cir. 1987). 11 The Court requested that Plaintiff brief the legal

12 sufficiency of the complaint to entitle Plaintiff to the relief 13 requested in the motion. In the first amended complaint, 14 Plaintiff did not expressly and directly request an order 15 compelling Defendant to execute documentation in order to correct 16 the record of death. Plaintiff did not request a declaratory 17 judgment or relief of a declaratory nature; Plaintiff expressly 18 prayed only for damages. Plaintiff has not briefed the elements 19 of the claims upon which he seeks judgment. 20 Because claims that are legally insufficient are not

21 established by a party's default, a court in considering an 22 application for default judgment must determine whether the 23 claims upon which a plaintiff seeks a default judgment are 24 legally sufficient. An application for a default judgment 25 qualifies as a motion pursuant to Fed. R. Civ. P. 7(b)(1) and 26 Local Rule 1-101(19), and it should include briefs pursuant to 27 Local Rule 78-230(b). Thus, when seeking a default judgment, a 28 plaintiff should provide the Court with points and authorities 4

1 containing citations to authority showing that the Plaintiff's 2 claim or claims include allegations of all the necessary elements 3 required for entitlement to relief. It is the party's burden to 4 demonstrate to the Court that under the pertinent law, the 5 Plaintiff's claims, as alleged, are legally sufficient. If a 6 party states multiple claims but judgment is sought on only some 7 of them, the party should inform the Court in the application of 8 the claims upon which judgment is sought. 9 Likewise, the applicant should supply the Court with all

10 pertinent and necessary legal authority pursuant to which it is 11 appropriate to enter judgment against a particular party based 12 upon the allegations of the party's status, agency, 13 participation, or other alleged basis for liability of the 14 particular party. 15 In this instance, in response to the Court's briefing order,

16 Plaintiff requested leave to file an amended pleading and 17 appeared to admit candidly that neither Plaintiff's complaint nor 18 the first amended complaint states a cause of action against 19 Samantha Dennis. (Doc. 59, p. 1, ll. 19-23.) 20 Accordingly, the Court concludes that Plaintiff has not

21 established the adequacy of notice to the Defendant, the legal 22 sufficiency of the allegations of the first amended complaint, or 23 the entitlement of the Plaintiff to the relief sought against the 24 allegedly defaulting defendant. 25 26 IV. Recommendation Therefore, it IS RECOMMENDED that Plaintiff's motion for

27 default judgment against Defendant Smantha Dennis BE DENIED. 28 This report and recommendation is submitted to the United 5

1 States District Court Judge assigned to the case, pursuant to the 2 provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 3 Local Rules of Practice for the United States District Court, 4 Eastern District of California. Within thirty (30) days after 5 being served with a copy, any party may file written objections 6 with the Court and serve a copy on all parties. Such a document 7 should be captioned "Objections to Magistrate Judge's Findings 8 and Recommendations." Replies to the objections shall be served 9 and filed within ten (10) court days (plus three days if served 10 by mail) after service of the objections. The Court will then 11 review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 12 (b)(1)(C). The parties are advised that failure to file 13 objections within the specified time may waive the right to 14 appeal the District Court's order. Martinez v. Ylst, 951 F.2d 15 1153 (9th Cir. 1991). 16 17 IT IS SO ORDERED. 18 Dated: icido3 19 20 21 22 23 24 25 26 27 28 6 July 17, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE