Smith et al v. Van Dyck et al

Filing 85

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)

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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 12 13 UNITED STATES OF AMERICA, and THE STATE OF CALIFORNIA ex rel., NANCY A. SMITH, and WENDY S. JOHNSON, ORDER 14 Relators, 15 16 No. 2:12-cv-1783 GEB DB v. NEIL ALAN VAN DYCK, DPM, et al., 17 Defendants. 18 This matter is before the undersigned on relators’ December 5, 2016 amended motion for 19 20 reconsideration of the Clerk of the Court’s September 15, 2016 decision to decline the entry of 21 default as to defendant Neil Alan Van Dyck, DPM, Inc., (hereinafter “corporate defendant”). 22 (ECF No. 74.) Defendant Neil Alan Van Dyck, an individual, filed an opposition on January 6, 23 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 24 25 individual and corporate defendant. (ECF No. 61.) “When the plaintiff files a waiver, proof of 26 service is not required and these rules [the Federal Rules of Civil Procedure] apply as if a 27 summons and complaint had been served at the time of filing the waiver.” Fed. R. Civ. P 4(d)(4). 28 //// 1 1 The waiver reflected that defendants were represented by attorney Andrew B. Goodman. 2 On April 25, 2016, relators filed a second amended complaint, (ECF No. 62), and served 3 the second amended complaint on defendants’ attorney, Andrew Goodman. (ECF No. 63.) Rule 4 5 provides that, “[i]f a party is represented by an attorney, service under this rule must be made 5 on the attorney unless the court orders service on the party.” Although the individual defendant 6 filed an answer to the second amended complaint, the corporate defendant has failed to respond to 7 the second amended complaint in any respect. “Under Rule 55(a) of the Federal Rules of Civil Procedure, ‘[w]hen a party against whom 8 9 a judgment for affirmative relief is sought has failed to plead or otherwise defend . . . ., the clerk 10 must enter the party’s default.’ The entry of default is therefore not discretionary.” Bricklayers 11 and Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., 12 LLC, 779 F.3d 182, 186 (2nd Cir. 2015) (quoting Fed. R. 55(a)). 13 14 15 16 17 Accordingly, upon consideration of the arguments on file, IT IS HEREBY ORDERED that: 1) Relators’ December 5, 2016 amended motion for reconsideration (ECF No. 74) is granted; and 2) The Clerk of the Court is directed to enter the default of defendant Neil Alan Van 18 Dyck, DPM, Inc. 19 Dated: January 20, 2017 20 21 22 23 DLB:6 DB\orders\orders.civil\smith1783.mot.recon.ord 24 25 26 27 28 2

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