Sarytchev v. Korolev et al

Filing 50

ORDER by Judge Hamilton denying 41 Motion for Default Judgment and striking Answer (pjhlc2, COURT STAFF) (Filed on 1/4/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SERGEI SARYTCHEV,
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Plaintiff,

No. C 12-2284 PJH

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v.

ORDER DENYING MOTION FOR
DEFAULT JUDGMENT AND STRIKING
ANSWER

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VICTOR KOROLEV, et al.,
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Defendants.
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Before the court is plaintiff’s motion for default judgment, filed on November 14,

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2012. The court notes that default has been entered against all defendants as of July 23,

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2012, and that this court’s order of October 3, 2012 permitted plaintiff to file a motion for

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default judgment if defendants did not move to set aside the default entered against them.

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Defendants still have not moved to set aside the default. However, defendants have filed

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an answer to plaintiff’s amended complaint, and have also filed an opposition (albeit, an

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untimely-filed opposition) to plaintiff’s motion for default judgment. Based on these filings, it

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does appear that defendants have shown an intent to defend the action. And given the

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courts’ strong public policy in favor of deciding cases on the merits, plaintiff’s motion for

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default judgment is hereby DENIED.

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However, defendants still have not moved to set aside the defaults entered against

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them. As a result, their answer was not properly filed, and is hereby STRICKEN under

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Federal Rule of Civil Procedure 12(f). While defendants have shown an intent to defend

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the action, they must follow the proper procedures in order to proceed. First, defendants

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must move, under Rule 55(c), to set aside the default entered against them. Next,

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assuming the default is set aside, defendants may re-file their answer. Defendants must

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move to set aside the defaults by January 25, 2013. If defendants file anything other than a

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motion to set aside the default, those filings will be stricken. And if defendants miss this

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second deadline for a motion to set aside the default, they risk default judgment being

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entered against them.

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IT IS SO ORDERED.

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Dated: January 4, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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