Perez v. Sandpoint Gas N Go & Lube Center, Inc. et al

Filing 33

MEMORANDUM DECISION AND ORDER Plaintiff's Verified Request for Clerk's Entry of Default (Dkt. 5 ) is GRANTED. Defendant Sydney Oskoui's Motion to Dismiss (Dkt. 6 ) is DENIED. Defendant Sydney Oskoui's Second Motion to Dismiss (Dkt. 12 ) is DENIED. Defendant Sydney Oskoui's Motion for Sanctions (Dkt. 22 ) is DENIED. The Clerk of the Court shall enter default in favor of Plaintiff and against each defendant. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
THOMAS E. PEREZ, SECRETARY OF
LABOR, UNITED STATES
DEPARTMENT OF LABOR,

Case No. 2:14-cv-00357-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
SANDPOINT GAS N GO & LUBE
CENTER, INC., an Idaho corporation;
and SYDNEY M. OSKOUI, an
individual,
Defendants.

INTRODUCTION
The Court has before it Plaintiff’s Verified Request for Clerk’s Entry of Default
(Dkt. 5), Defendant Sydney Oskoui’s Motion to Dismiss (Dkt. 6), Defendant Sydney
Oskoui’s Second Motion to Dismiss (Dkt. 12), and Defendant Sydney Oskoui’s Motion
for Sanctions (Dkt. 22).
BACKGROUND
The Complaint in this matter was served on both defendants on September 3,
2014. Dkts. 3 and 4. The deadline for responding to the Complaint was September 24,
2014. Fed. R. Civ. P. 12(a)(1)(A)(1). Neither defendant filed a response on or before
September 24, 2014, and Plaintiff filed its request for Clerk’s entry of default on

MEMORANDUM DECISION AND ORDER - 1

September 25, 2014. Several other motions – namely those mentioned above – were
subsequently filed by at least one of the defendants.
ANALYSIS
Federal Rule of Civil Procedure 6 requires that when an act must be done within a
specified time, the court may extend the time for good cause shown with or without
motion or notice if a request for extension is made before the original time expires. Fed.
R. Civ. P. 6(b)(1)(A) (emphasis added). Otherwise, the Court may, for good cause,
extend the time only “on motion made after the time has expired if the party failed to act
because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). Here, no request for extension
was made before the original time expired – in fact, no motion or request for extension
has ever been made by either defendant.
Accordingly, the Court turns to the request for default. “When a party against
whom a judgment for affirmative relief is sought has failed to plead or otherwise defend,
and that failure is shown by affidavit or otherwise, the clerk must enter the party’s
default.” Fed. R. Civ. P. 55(a) (emphasis added). Here, as explained above, neither
defendant responded to the Complaint in a timely manner, which in essence means
neither defendant responded to the Complaint. Moreover, a proof of service for each
defendant was filed with the Court, Dkts. 3 and 4, and Plaintiff filed an affidavit
explaining that the request for entry of default was sent by certified mail to the
defendants. Dkt. 5. Therefore, the Court has no choice but to order the Clerk of the Court

MEMORANDUM DECISION AND ORDER - 2

to enter default against both defendants. The Court may entertain a motion to set aside
default under Rule 55(c), but at this point the Court must order the Clerk to enter default.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Verified Request for Clerk’s Entry of Default (Dkt. 5) is
GRANTED.

2.

Defendant Sydney Oskoui’s Motion to Dismiss (Dkt. 6) is DENIED.

3.

Defendant Sydney Oskoui’s Second Motion to Dismiss (Dkt. 12) is
DENIED.

4.

Defendant Sydney Oskoui’s Motion for Sanctions (Dkt. 22) is DENIED.

5.

The Clerk of the Court shall enter default in favor of Plaintiff and against
each defendant.

DATED: December 3, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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