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)

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