Smith et al v. Van Dyck et al
ORDER granting 74 AMENDED MOTION for RECONSIDERATION signed by Magistrate Judge Deborah Barnes on 1/20/17: The Clerk of the Court is directed to enter the default of defendant Neil Alan Van Dyck, DPM, Inc. (Kaminski, H)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, and
THE STATE OF CALIFORNIA ex rel.,
NANCY A. SMITH, and WENDY S.
No. 2:12-cv-1783 GEB DB
NEIL ALAN VAN DYCK, DPM, et al.,
This matter is before the undersigned on relators’ December 5, 2016 amended motion for
reconsideration of the Clerk of the Court’s September 15, 2016 decision to decline the entry of
default as to defendant Neil Alan Van Dyck, DPM, Inc., (hereinafter “corporate defendant”).
(ECF No. 74.) Defendant Neil Alan Van Dyck, an individual, filed an opposition on January 6,
2017. (ECF No. 75.) Relators filed a reply on January 13, 2017. (ECF No. 81.)
On April 6, 2016, relators filed an executed waiver of summons on behalf of both the
individual and corporate defendant. (ECF No. 61.) “When the plaintiff files a waiver, proof of
service is not required and these rules [the Federal Rules of Civil Procedure] apply as if a
summons and complaint had been served at the time of filing the waiver.” Fed. R. Civ. P 4(d)(4).
The waiver reflected that defendants were represented by attorney Andrew B. Goodman.
On April 25, 2016, relators filed a second amended complaint, (ECF No. 62), and served
the second amended complaint on defendants’ attorney, Andrew Goodman. (ECF No. 63.) Rule
5 provides that, “[i]f a party is represented by an attorney, service under this rule must be made
on the attorney unless the court orders service on the party.” Although the individual defendant
filed an answer to the second amended complaint, the corporate defendant has failed to respond to
the second amended complaint in any respect.
“Under Rule 55(a) of the Federal Rules of Civil Procedure, ‘[w]hen a party against whom
a judgment for affirmative relief is sought has failed to plead or otherwise defend . . . ., the clerk
must enter the party’s default.’ The entry of default is therefore not discretionary.” Bricklayers
and Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const.,
LLC, 779 F.3d 182, 186 (2nd Cir. 2015) (quoting Fed. R. 55(a)).
Accordingly, upon consideration of the arguments on file, IT IS HEREBY ORDERED
1) Relators’ December 5, 2016 amended motion for reconsideration (ECF No. 74) is
2) The Clerk of the Court is directed to enter the default of defendant Neil Alan Van
Dyck, DPM, Inc.
Dated: January 20, 2017
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