Ewing v. McCarthy et al

Filing 29

ORDER Regarding Plaintiff's Request for Entry of Default. The Court respectfully requests the Clerk of Court to enter default against Defendant Sirewest. Signed by Judge Gonzalo P. Curiel on 12/1/17.(All non-registered users served via U.S. Mail Service)(dlg)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

ANTON EWING,

Case No.: 3:17-cv-01554-GPC-RBB
Plaintiff,

12
13

v.

14

ORDER REGARDING PLAINTIFF’S
REQUEST FOR ENTRY OF
DEFAULT

PATRICK MCCARTHY, a/k/a FLYNN
MCCARTHY; BRYAN DAVID MINEY;
SKY SIREWEST; DOES 1-10; ABC
CORPORATIONS 1-10; and XYZ, LLC's
1-10,

15
16
17

Defendant.

18
19
20
21
22
23
24
25
26
27
28

[ECF No. 23]

On October 25, 2017, the Court entered an order denying Defendants’ motions to
dismiss for lack of personal jurisdiction and improper venue. (ECF No. 22.) Under
Federal Rule of Civil Procedure 12(a)(4), Defendants were required to serve a pleading in
response to Plaintiff’s complaint “within 14 days after notice” of the Court’s ruling on
their motions to dismiss.
On November 13, 2017—19 days after the Court issued its ruling denying the
motions to dismiss—Plaintiff filed a request with the Clerk of Court to issue an entry of
default against the three named defendants in this case because none had filed a timely
responsive pleading. (ECF No. 23.) The Clerk’s Office denied this request. (See id.)
1
3:17-cv-01554-GPC-RBB

1

The Court notes that Plaintiff’s request should have been granted, however, because no

2

defendant had filed a timely responsive pleading at the time of Plaintiff’s request. See

3

Fed. R. Civ. P. 55(a).

4

Yet, in the meantime, Defendants Mincey and McCarthy have filed separate

5

answers to Plaintiff’s complaint. (ECF Nos. 25, 27.) In light of the fact that Mincey and

6

McCarthy are both appearing pro se, the Court finds good cause to excuse the

7

untimeliness of their responsive pleadings. As a result, while default should have been

8

entered against Defendants Mincey and McCarthy, the Court concludes that good cause

9

would have been found to set aside the default against them had it been entered. See Fed.

10

R. Civ. P. 55(c) (“The court may set aside an entry of default for good cause . . .”). The

11

Court therefore accepts the answers filed by Defendants Mincey and McCarthy, and

12

orders that default not be entered against them.

13

The third named defendant in this case, Defendant Sirewest, however, has not filed

14

a responsive pleading. Because, as discussed above, the deadline to file a responsive

15

pleading has passed, the Court respectfully requests the Clerk of Court to enter default

16

against Defendant Sirewest under Federal Rule of Civil Procedure 55(a).

17

IT IS SO ORDERED.

18
19

Dated: December 1, 2017

20
21
22
23
24
25
26
27
28
2
3:17-cv-01554-GPC-RBB