Watterson v. Fritcher

Filing 15

SECOND ORDER DENYING Plaintiff's Application for Entry of Default 13 , signed by District Judge Dale A. Drozd on 11/14/17. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEONARD WATTERSON, 12 Plaintiff, 13 14 No. 1:17-cv-01020-DAD-JLT SECOND ORDER DENYING PLAINTIFF’S APPLICATION FOR ENTRY OF DEFAULT v. JULIE FRITCHER and DOES 1-10, (Doc. No. 13) 15 Defendants. 16 On October 25, 2017, this court issued an order denying plaintiff’s prior motion seeking 17 18 entry of default judgment because plaintiff had neither sought nor obtained a clerk’s entry of 19 default judgment. (Doc. No. 12.) Shortly thereafter, on October 28, 2017, plaintiff filed a 20 document seeking a clerk’s entry of default. (Doc. No. 13.)1 The Clerk of the Court is to enter a default “[w]hen a party against whom a judgment for 21 22 affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by 23 affidavit or otherwise.” Fed. R. Civ. P. 55(a). Once a clerk’s default has been entered, either the 24 Clerk of the Court or the court itself, depending on the circumstances, may then enter a default 25 judgment. See Fed. R. Civ. P. 55(b); Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) 26 1 27 28 Plaintiff’s “application/motion” was mistakenly docketed as a “motion for entry of default judgment.” (Doc. No. 13.) On review, the filing clearly requests a clerk’s entry of default and is not a motion for entry of default judgment brought under Federal Rule of Civil Procedure 55(b)(2). 1 1 (holding that where there has been an appearance but not a response from the adverse party, the 2 district court and not the Clerk must enter judgment). Default judgments are generally disfavored 3 and courts should seek to reach the merits of a case whenever reasonably possible. NewGen, LLC 4 v. Safe Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016); In re Hammer, 940 F.2d 524, 525 (9th Cir. 5 1991). 6 Here, it would be inappropriate for the Clerk to enter a default as the party against whom 7 default is sought, defendant Fritcher, filed an answer in this action on September 6, 2017. (Doc. 8 No. 7.) Plaintiff objects to the manner of service of the answer because, as plaintiff’s counsel 9 declares, “[o]n August 5, 20172 a package was dropped off at my address,” purporting to be the 10 answer, which was not signed and lacked a proof of service. (See Doc. No. 13 at ¶ 3.) Under this 11 court’s Local Rules, attorneys using the CM/ECF system are served documents electronically 12 upon filing and generation of the Notice of Filing, which constitutes service under Rule 13 5(b)(2)(E) of the Federal Rules of Civil Procedure. See L.R. 135. Notwithstanding the 14 effectiveness of the service on September 5, 2017, therefore, the answer was certainly served by 15 the very next day, September 6, 2017. Moreover, the answer filed on the court’s docket is signed. 16 (See Doc. No. 7 at 17.) Entry of default would therefore be inappropriate here, especially 17 considering the fact that defendant is proceeding pro se and in light of the fact that default 18 judgments are strongly disfavored. See NewGen, LLC, 840 F.3d at 616; In re Hammer, 940 F.2d 19 at 525; see also Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009); 20 Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006); Franchise 21 Holding II, LLC v. Huntington Rest. Grp., Inc., 375 F.3d 922, 927 (9th Cir. 2004). Accordingly, plaintiff’s request for a clerk’s entry of default (Doc. No. 13) is denied. 22 23 IT IS SO ORDERED. 24 Dated: November 14, 2017 UNITED STATES DISTRICT JUDGE 25 26 27 28 2 It appears likely that plaintiff’s counsel meant to declare that this occurred on September 5, 2017, since defendant had not yet been served on August 5, 2017. (See Doc. No. 5.) 2

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