Sarytchev v. Korolev et al

Filing 35

ORDER by Judge Hamilton granting 17 Motion to Strike ; granting 24 Motion to Strike (pjhlc2, COURT STAFF) (Filed on 10/3/2012)

1
2

UNITED STATES DISTRICT COURT

3

NORTHERN DISTRICT OF CALIFORNIA

4
5
SERGEI SARYTCHEV,
6
Plaintiff,

No. C 12-2284 PJH

7
v.

ORDER GRANTING MOTIONS TO
STRIKE

8
VICTOR KOROLEV, et al.,
9
10
11

Defendants.
___________________________________/
Plaintiff’s motions to strike defendants’ answers came on for hearing before this

12

court on October 3, 2012. Plaintiff Sergei Sarytchev (“plaintiff”) appeared through his

13

counsel, Steven Barnhill. Defendants Classic-Partner LLC, Dmitri Gorev, and Sergei Liliev

14

(“defendants”) did not appear at the hearing. Having read all the papers submitted and

15

carefully considered the relevant legal authority, the court GRANTS the motions for the

16

reasons stated at the hearing and as follows.

17

As of June 18, 2012, each of the defendants in this case had been served with the

18

complaint. None of the defendants filed an answer. On July 12, 2012, plaintiff filed a

19

motion for entry of default as to all defendants. See Dkt. 13. Default was entered as to

20

defendants Classic-Partner and Gorev on July 19, 2012. See Dkt. 14. The next day,

21

defendant Classic-Partner filed an answer to the complaint. On July 23, 2012, default was

22

entered as to defendant Liliev. See Dkt. 16. On August 6, 2012, defendants Gorev and

23

Liliev answered the complaint.

24

Once default has been entered, a defendant’s right to appear in the action is cut off.

25

See, e.g., Cohen v. Murphy, 2004 WL 2779942 (N.D. Cal. 2004). Thus, each defendant’s

26

answer in this case was improperly filed. Each defendant must first move to set aside the

27

default before proceeding any further in this case. The court also notes that each

28

defendant’s answer was filed by an attorney who does not appear to be admitted to

1

1

practice in this court. For those reasons, the answers filed by defendants Classic-Partner,

2

Gorev, and Lilev are hereby STRICKEN. Each defendant shall have until October 31, 2012

3

to file a motion to set aside default. Under Local Rule 3-9, defendants Gorev and Liliev

4

may appear pro se, and may file their motions without assistance of counsel. However,

5

because Classic-Partner is a business entity, it must appear through counsel. If any

6

defendant does not file a motion to set aside default by October 31, plaintiff may file a

7

motion for default judgment as to that defendant by November 14, 2012.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

IT IS SO ORDERED.
Dated: October 3, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge