Eli Lilly and Company v. Gitmed et al

Filing 47

ORDER Requiring Plaintiff to Supplement Application for Entry of Default Judgment, signed by Magistrate Judge Stanley A. Boone on 3/3/17. Five-Day Deadline. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ELI LILLY AND COMPANY, Plaintiff, 12 13 14 15 Case No. 1:16 -cv-00178-DAD-SAB ORDER REQUIRING PLAINTIFF TO SUPPLEMENT APPLICATION FOR ENTRY OF DEFAULT JUDGMENT v. JOHN DEREK GITMED, et al., FIVE-DAY DEADLINE Defendants. 16 17 Currently, this action is proceeding against Defendant John Gitmed with default having 18 been entered against Defendant Anthony Pollino, Jr. On February 8, 2017, Plaintiff filed an 19 application for entry of default judgment against Defendant Anthony Pollino, Jr. 20 While Plaintiff addresses entry of default judgment pursuant to Rule 55 of the Federal 21 Rules of Civil Procedure, Plaintiff has not addressed whether it would be appropriate to enter 22 judgment against one defendant while this action continues on the same claims against a co23 defendant. Rule 54 of the Federal Rules of Civil Procedure provides that where an action is 24 brought alleging more than one claim or is against more than one party, the Court may direct 25 entry of final judgment against fewer than all claims or parties only if the Court expressly 26 determines that there is no just reason for delay. Fed. R. Civ. P. 54(b). 27 The leading case on the issue of default judgment in actions involving multiple 28 defendants is Frow v. De La Vega, 15 Wall. 552, 82 U.S. 552 (1872). In re First T.D. & Inv., 1 1 Inc., 253 F.3d 520, 532 (9th Cir. 2001). In Frow, the Supreme Court held that “where a 2 complaint alleges that defendants are jointly liable and one of them defaults, judgment should 3 not be entered against the defaulting defendant until the matter has been adjudicated with regard 4 to all defendants.” In re First T.D., 253 F.3d at 532. The possibility of inconsistent judgments 5 must be avoided. Id. Courts have extended this rule to apply to situation where the defendants 6 are similarly situated, even when they are not jointly and severally liable. Id. at 532. Further, 7 even if a judgment could be entered into on the issue of liability, the issue arises as to whether 8 entry of damages should be postponed until the claims against all defendants are resolved. 9 Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 1012 (N.D. Cal. 2001). 10 Plaintiff’s application for entry of default judgment does not address whether there is no just 11 reason for delay when this action continues against Defendant Gitmed. Accordingly, IT IS HEREBY ORDERED that, within five days from the date of entry of 12 13 this order, Plaintiff shall file a supplemental brief addressing why there is no just reason for 14 delay to enter final judgment as to only one of the defendants in this action. 15 16 IT IS SO ORDERED. 17 Dated: March 3, 2017 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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