Newsom et al v. Countrywide Home Loans, Inc. et al

Filing 129

ORDER by Judge ARMSTRONG striking 124 Motion to Dismiss (lrc, COURT STAFF) (Filed on 1/17/2013)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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PETER AND STEPHANIE NEWSON,

Case No: C 09-5288 SBA

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Plaintiffs,
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vs.

ORDER STRIKING DEFENDANT
WHITESIDE’S MOTION TO
DISMISS

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COUNTRYWIDE HOME LOANS, INC.
11 DBA AMERICA’S WHOLESALE LENDER,

MORTGAGE ELECTRONIC
12 REGISTRATIONS SYSTEMS, INC.,

BANKERS ALLIANCE INC., JULIE
13 WHITESIDE, and DOES 1-20, inclusive,

Defendants.

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On December 18, 2012, the Clerk entered the default of Defendant Julie Whiteside

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(“Whiteside”). Dkt. 120. On the same day Plaintiffs filed a motion for default judgment

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against Whiteside (as well as Defendant Bankers Alliance) which the Court has since

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referred to Magistrate Judge Nandor Vadas for a report and recommendation. Dkt. 121,

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122.

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On January 15, 2013, Whiteside filed a pro se motion to dismiss for improper

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service, pursuant to Federal Rule of Civil Procedure 12(b)(5). Dkt. 124. The entry of

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default cuts off a defendant’s right to appear in an action. Schwarzer, Tashima &

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Wagstaffe, Fed. Civ. P. Before Trial, § 6:42 at 6-9 (TRG 2012) (citing Clifton v. Tomb, 21

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F.2d 893, 897 (4th Cir. 1927)). Thus, Whiteside’s motion to dismiss is improper.

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Whiteside’s remedy is to file a motion to set aside the entry of default, pursuant to Federal

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Rule of Civil Procedure 55(c). See Great Am. Ins. Co. v. M.J. Menefee Constr., Inc., No.

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CV F 06-0392 AWI DLB, 2006 WL 2522408 (E.D. Cal. Aug. 29, 2006). Accordingly,

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IT IS HEREBY ORDERED THAT Whiteside’s motion to dismiss shall be
STRICKEN from the record. The Clerk shall strike Docket 124 and 125.
IT IS SO ORDERED.
Dated: January 16, 2013

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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PETER AND STEPHANIE NEWSOM et al,

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Plaintiff,
v.
COUNTRYWIDE HOME LOANS INC et al,
Defendant.
/

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Case Number: CV09-05288 SBA

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CERTIFICATE OF SERVICE

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on January 17, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Julie Whiteside
1212 Sterns Drive
Los Angeles, CA 90035

Dated: January 17, 2013
Richard W. Wieking, Clerk

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By: Lisa Clark, Deputy Clerk

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