Abels v. Bank of America et al

Filing 87

ORDER by Judge Yvonne Gonzalez Rogers denying 83 Motion for Default Judgment; denying as moot the 86 Motion to Shorten Time. (fs, COURT STAFF) (Filed on 4/27/2012)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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ALISON M. ABELS,

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Plaintiff,

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vs.

Northern District of California

United States District Court

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ORDER DENYING PLAINTIFF’S MOTION ON
ENTRY OF DEFAULT JUDGMENT AND
APPLICATION FOR SHORTENING TIME FOR
MOTION ON ENTRY OF DEFAULT JUDGMENT

BANK OF AMERICA, N.A., et al.,

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Case No.: 11-CV-208 YGR

Defendants.

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Plaintiff Alison Abels filed a Motion for Entry of Default Judgment Against Defendants
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Bank of America, N.A., Recontrust Company, N.A. and Realtime Resolutions (“the Foreclosing

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Defendants”) on April 24, 2012. (Dkt. No. 83.) Thereafter, she filed an Application for Order

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Shortening Time as to her Motion for Entry of Default Judgment Against Defendants Bank of

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America, N.A., Recontrust Company, N.A., and Realtime Resolutions on April 25, 2012. (Dkt. No.

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86.)
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The Court having carefully reviewed the motion and papers submitted in support of both

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filings, and in the interests of justice, the Court rules on the Motion and on the Application at this

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time without further briefing.

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First, Plaintiff’s Motion for Entry of Default Judgment is DENIED. Plaintiff argues that a

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default judgment should be entered against the Foreclosing Defendants because they failed to file a

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response to her Second Amended Complaint within the time provided in this Court’s Order Granting

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in Part and Denying in Part Defendants’ Motion to Dismiss. (Dkt. No. 61.) That Order required

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Plaintiff to file and serve a Second Amended Complaint no later than March 16, 2012, and for

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Defendants to file and serve their response “within 14 days thereafter.” (Id.)

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Plaintiff filed her Second Amended Complaint on March 16, 2012. (Dkt. No. 62.)

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Defendants’ responses to the Second Amended Complaint were not filed until April 5, 2012, 20 days

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later. (Dkt. 71, 75.) Adding on 3 days to the end of the period per Federal Rule of Civil Procedure

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6(d), Defendants’ responses were due no later than April 3, 2012, and filing on April 5, 2012, was

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tardy. Nevertheless, entry of default and default judgment under the circumstances here is not

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warranted.

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First, with respect to the Foreclosing Defendants at issue here, Plaintiff has not followed the

Northern District of California

United States District Court

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proper procedures for making a motion for default judgment. No default has been entered against

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Defendants Bank of America, N.A., Recontrust Company, N.A. and Realtime Resolutions. Plaintiff

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filed no request for entry of default per FRCP 55(a) at that time. Instead she filed a “Notice of Non

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Response to Second Amended Complaint” on April 5, 2012. (Dkt. No. 70.) The Court notes that

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Plaintiff, though self-represented, has demonstrated that she understands how to request entry of

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default, as she has previously done so in this case. (See, e.g., Dkt. No. 43.) While Defendants’

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responses were untimely filed and served, they have responded to the Second Amended Complaint

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such that entry of default against them would not be proper. See United States v. Smith, 212 FRD

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480, 481 (M.D. N.C. 2002) (late answer filed before entry of default evidenced intent to defend,

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making entry of default improper); see also, Eitel v McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986)

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(strong policy of the Federal Rules favors decisions on the merits).

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Even had Plaintiff timely sought entry of default against these defendants, entry of default

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would not automatically entitle her to judgment. See Draper v. Coombs, 792 F.2d 915, 924 (9th Cir.

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1986) (granting default judgment within court’s discretion). To the extent that Plaintiff is seeking to

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have the court enter a default judgment against Defendants by way of this motion, the motion does

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not prove up the basis for an entry of judgment by offering proof of Plaintiff’s entitlement to the

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relief she seeks in her Second Amended Complaint.

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In short, Plaintiff’s Motion for Default Judgment is without merit on its face and is DENIED
by the Court.

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As a result the application to shorten time on the motion is DENIED as moot.

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IT IS SO ORDERED.

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This order terminates Docket Nos. 83 and 86.

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Dated: April 27, 2012

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___________________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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Northern District of California

United States District Court

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