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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1 2 3 4 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 6 7 8 ALISON M. ABELS, 9 Plaintiff, 10 vs. Northern District of California United States District Court 11 12 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., 13 Case No.: 11-CV-208 YGR Defendants. 14 15 Plaintiff Alison Abels filed a Motion for Entry of Default Judgment Against Defendants 16 17 Bank of America, N.A., Recontrust Company, N.A. and Realtime Resolutions (“the Foreclosing 18 Defendants”) on April 24, 2012. (Dkt. No. 83.) Thereafter, she filed an Application for Order 19 Shortening Time as to her Motion for Entry of Default Judgment Against Defendants Bank of 20 America, N.A., Recontrust Company, N.A., and Realtime Resolutions on April 25, 2012. (Dkt. No. 21 86.) 22 23 The Court having carefully reviewed the motion and papers submitted in support of both 24 filings, and in the interests of justice, the Court rules on the Motion and on the Application at this 25 time without further briefing. 26 First, Plaintiff’s Motion for Entry of Default Judgment is DENIED. Plaintiff argues that a 27 default judgment should be entered against the Foreclosing Defendants because they failed to file a 28 response to her Second Amended Complaint within the time provided in this Court’s Order Granting 1 in Part and Denying in Part Defendants’ Motion to Dismiss. (Dkt. No. 61.) That Order required 2 Plaintiff to file and serve a Second Amended Complaint no later than March 16, 2012, and for 3 Defendants to file and serve their response “within 14 days thereafter.” (Id.) 4 Plaintiff filed her Second Amended Complaint on March 16, 2012. (Dkt. No. 62.) 5 Defendants’ responses to the Second Amended Complaint were not filed until April 5, 2012, 20 days 6 later. (Dkt. 71, 75.) Adding on 3 days to the end of the period per Federal Rule of Civil Procedure 7 6(d), Defendants’ responses were due no later than April 3, 2012, and filing on April 5, 2012, was 8 tardy. Nevertheless, entry of default and default judgment under the circumstances here is not 9 warranted. 10 First, with respect to the Foreclosing Defendants at issue here, Plaintiff has not followed the Northern District of California United States District Court 11 proper procedures for making a motion for default judgment. No default has been entered against 12 Defendants Bank of America, N.A., Recontrust Company, N.A. and Realtime Resolutions. Plaintiff 13 filed no request for entry of default per FRCP 55(a) at that time. Instead she filed a “Notice of Non 14 Response to Second Amended Complaint” on April 5, 2012. (Dkt. No. 70.) The Court notes that 15 Plaintiff, though self-represented, has demonstrated that she understands how to request entry of 16 default, as she has previously done so in this case. (See, e.g., Dkt. No. 43.) While Defendants’ 17 responses were untimely filed and served, they have responded to the Second Amended Complaint 18 such that entry of default against them would not be proper. See United States v. Smith, 212 FRD 19 480, 481 (M.D. N.C. 2002) (late answer filed before entry of default evidenced intent to defend, 20 making entry of default improper); see also, Eitel v McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) 21 (strong policy of the Federal Rules favors decisions on the merits). 22 Even had Plaintiff timely sought entry of default against these defendants, entry of default 23 would not automatically entitle her to judgment. See Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 24 1986) (granting default judgment within court’s discretion). To the extent that Plaintiff is seeking to 25 have the court enter a default judgment against Defendants by way of this motion, the motion does 26 not prove up the basis for an entry of judgment by offering proof of Plaintiff’s entitlement to the 27 relief she seeks in her Second Amended Complaint. 28 2 1 2 In short, Plaintiff’s Motion for Default Judgment is without merit on its face and is DENIED by the Court. 3 As a result the application to shorten time on the motion is DENIED as moot. 4 IT IS SO ORDERED. 5 This order terminates Docket Nos. 83 and 86. 6 Dated: April 27, 2012 7 8 9 ___________________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 10 Northern District of California United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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