Irick v. Graham Noble & Associates

Filing 11

ORDER vacating entry of Default 10 . Signed by Judge Jeffrey T. Miller on 12/16/09.(tkl) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On the court's own motion, the Clerk's Entry of Default (Docket No. 10) is hereby vacated. As a prerequisite to entry of default, Fed.R.Civ.P. 55(a) requires that the party seeking entry of default must show by "affidavit or otherwise" that the prospective defaulting party "has failed to plead or otherwise defend" the action. Fed.R.Civ.P. 55(a). The original complaint, filed on April 29, 2009, named Graham Noble & Associates as the only defendant. (Docket No. 1). Plaintiff also submitted a returned executed summons for this defendant. (Docket No. 3). The First Amended Complaint, filed on June 30, 2009, named four additional defendants: Graham, Noble & Associates, L.L.C.; Graham & Noble; Graham, Noble & Associates Bookkeeping; and Graham Beagle and Associates, Inc. (Docket No. 4). There is no returned executed summons for any of these four defendants. Furthermore, the proof of service submitted by Plaintiff in support of his request for entry of default's represents that these four defendants were served by mail. (Docket No. 9-2). As simple mail service is inadequate to commence the action against the four new defendants, Fed.R.Civ.P. 4, these defendants, based upon the record currently before the court, are -109cv0908

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
MICHAEL IRICK, vs. Plaintiff, CASE NO. 09cv0908 JM(AJB) ORDER VACATING ENTRY OF DEFAULT (DOCKET NO. 10)

GRAHAM NOBLE & ASSOCIATES, et al., Defendants.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

under no obligation to "plead or otherwise defend" the action. Fed.R.Civ.P. 55(a). Consequently, Plaintiff fails to establish that entry of default is warranted under the circumstances and the court vacates the Clerk's Entry of Default. Nothing in this order prevents Plaintiff from seeking, a third time, to establish default. IT IS SO ORDERED. DATED: December 16, 2009 Hon. Jeffrey T. Miller United States District Judge
cc: All parties

-2-

09cv0908