Keel et al v. Greystone Nevada, LLC et al

Filing 133

ORDER denying 101 Third Party Plaintiff's Motion for Default Judgment against Third Party Defendant Enviromold Services. See order re specifics. Signed by Judge Larry R. Hicks on 2/5/2010. (Copies have been distributed pursuant to the NEF - SL)

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 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA *** ) STEVEN KEEL, et al., ) ) Plaintiffs, ) ) v. ) ) GREYSTONE NEVADA, LLC, et al., ) ) Defendants. ) ) ) GREYSTONE NEVADA, LLC, a Delaware ) limited liability company, ) ) Third Party Plaintiff, ) ) v. ) ) CHAMPION DRYWALL INC. OF ) NEVADA, et al., ) ) Third Party Defendants. ) ) ) RISING SUN PLUMBING, LLC, ) ) Third Party Plaintiff, ) ) v. ) ) SERVPRO OF SOUTHWEST LAS VEGAS, ) et al., ) ) Third Party Defendants. ) )

2:08-cv-00642-LRH-PAL ORDER

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Before the court is Third Party Plaintiff Rising Sun Plumbing's Motion to Enter Default Against Third Party Defendant Enviromold Services (#1011). Obtaining a default judgment is a two-step process governed by Federal Rule of Civil Procedure 55. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). First, Rule 55(a) provides, "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." Second, after the clerk enters default, a party must seek entry of default judgment under Rule 55(b). In its motion, Rising Sun appears to seek a default judgment against Enviromold. However, in making this request, Rising Sun has circumvented the requirements of Federal Rule of Civil Procedure 55(a) by failing to first obtain an entry of default from the clerk. Accordingly, the court will deny the motion.2 IT IS THEREFORE ORDERED that Rising Sun Plumbing's Motion to Enter Default Against Third Party Defendant Enviromold Services (#101) is DENIED. IT IS SO ORDERED. DATED this 5th day of February, 2010.

__________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE
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Refers to the court's docket entry number.

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The court notes that on September 14, 2009, Enviromold filed an answer. Nonetheless, if Rising Sun continues to seek a default judgment against Enviromold, it must first obtain an entry of default from the clerk. Once the clerk enters default, Rising Sun should then file a motion for default judgment explaining why the court should enter default judgment against Enviromold. See Warner Bros. Entm't Inc. v. Caridi, 346 F. Supp. 2d 1068, 1071 (C.D. Cal. 2004) (citation omitted) (noting that while entry of default by the clerk is a prerequisite to an entry of default judgment, "a plaintiff who obtains an entry of default is not entitled to default judgment as a matter of right."); see also Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (outlining factors the court may consider in exercising its discretion to award a default judgment).
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