Aspenlind v. Spartan Mortgage Services et al

Filing 26

ORDER signed by Magistrate Judge Gregory G. Hollows on 9/8/2011 ORDERING that the 9/15/2011 hearing re 18 Motion for Default Judgment is VACATED. The 18 Motion fo Default Judgment is DENIED. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARS ASPENLIND,

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Plaintiffs,

CIV. NO. S-11-0366 MCE GGH

vs.
SPARTAN MORTGAGE SERVICES, et al.,
ORDER

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Defendants.
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Presently pending on this court’s law and motion calendar for September 15,

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2011, is plaintiff’s motion for default judgment, filed August 3, 2011, against defendants Seville

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Equities (“Seville”), Sutherland and Gray. Defendants have not filed an opposition. Having

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reviewed the motion, the court determines that it is suitable for decision without oral argument.

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The September 15, 2011 hearing is therefore vacated.

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Plaintiff seeks default judgment against the aforementioned defendants for their

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failure to answer the first amended complaint within the 21 day period after service which was

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effectuated on February 9, 2011 for defendant Gray, and February 10, 2011 for defendants

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Seville and Sutherland. Instead, these defendants filed a motion to dismiss on March 14, 2011,

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which was taken under submission without a hearing by the court on April 11, 2011, almost four

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months before plaintiff filed the motion for default judgment.
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According to Ninth Circuit law, a motion to dismiss pursuant to Federal Rule of

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Civil Procedure 12(b) may be made at any time before a responsive pleading is filed. Aetna Life

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Insurance Co. v. Alla Medical Services, Inc., 855 F.2d 1470, 1474 (9th Cir. 1988). The motion

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to dismiss in this case was filed before an answer, and therefore it is timely.

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Furthermore, plaintiff did not file a request for entry of default prior to filing his

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motion for default judgment, as required by Fed. R. Civ. P. 55(a). Therefore, plaintiff’s motion

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for default judgment is denied as premature. Finally, plaintiff did not move for default judgment

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until over four months after defendants filed their motion to dismiss, and therefore no prejudice

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has resulted from any possible delay in moving to dismiss.

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Accordingly, IT IS ORDERED that:

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1. The September 15, 2011 hearing on plaintiff’s motion for default judgment is

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vacated from the calendar; and

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2. Plaintiff’s motion for default judgment, filed August 3, 2011, (dkt. no. 18), is

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denied.

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DATED: September 8, 2011
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:076/Aspenlind0366.def.wpd

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