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