Worthen v. Aftermath, Inc.

Filing 8

ORDER Denying 5 Motion for Default Judgment. The Court will permit Defendant to file a responsive pleading within 10 days of the date of this Order. Signed by Judge Roger L. Hunt on 6/23/11. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7

***

8
9
10
11
12

SHAROD J. WORTHEN,

)
)
Plaintiff(s),
)
)
vs.
)
)
AFTERMATH INC.,
)
)
Defendant(s).
)
____________________________________)

Case No. 2:11-cv-0344-RLH-PAL
ORDER
(Motion for Default Judgment–#5)

13
14

Before the Court is Plaintiff’s (Motion for) Entry of Default (#5, filed June 16, 2011).

15

Defendant has filed a Response and Opposition (#6, filed June 17, 2011). A reply is unnecessary and

16

the Court will address the “motion” immediately.

17

Plaintiff’s document is incorrectly entitled “Entry of Default.” Plaintiff does not enter

18

a default, but requests the Court to do so. Furthermore, while it is entitled “Entry of Default,” the

19

context of the document speaks as though it were a motion for default judgment, which is a different

20

thing than merely requesting the entry of default, and which requires admissible proof by one having

21

knowledge of the facts sufficient to justify a judgment.

22

The Complaint was purportedly served on May 25, 2011. Defendant’s Response and

23

Opposition argues that it previously served and filed a demand for Security of Costs, on June 6, 2011,

24

which it believes stays the requirement to file a response to the complaint until the Security of Costs

25

is filed, pursuant to N.R.S. 18.130. Plaintiff’s (Motion for) Entry of Default was filed on the 22d day

26

following the purported service.
1

1

Plaintiff’s “motion” is improper and inadequate as a motion for default judgment

2

because it is improperly entitled, does not contain sufficient admissible documentation for a default

3

judgment, and Defendant, who has made an appearance is not given an opportunity to respond and

4

defend against a judgment. Accordingly, Plaintiff’s (Motion for) Default Judgment (#5) will be

5

denied.

6

Defendant’s Response and Opposition is also flawed in that Defendant is of the

7

understanding that filing of a Demand for Security of Costs in this case stays the obligation to file an

8

answer. Nevada Revised Statute 18.130 is a Nevada statute and therefore only applies in federal court

9

if the matter is here on diversity (under 28 U.S.C. §1332), which is not the case here, as this case is

10

brought under §1331-federal question. Cf. Hamar v. Hyatt Corp. 98 F.R.D. 305 (D.C.Nev. 1983) and

11

Arrambide v. St. Mary’s Hospital, Inc., 647 F.Supp. 1148, 1149 (D.Nev. 1986).

12

Accordingly, filing a Demand for Security of Costs, in this instance does not stay the

13

requirement to file a timely response to the Complaint. However, because Defendant’s misunder-

14

standing is an excusable misunderstanding, and, because the Demand was filed timely, and, because

15

there has been no undue delay, the Court will permit Defendant to file a responsive pleading within

16

10 days of the date of this Order.

17

IT IS SO ORDERED.

18

Dated: June 23, 2011.

19
20

____________________________________
Roger L. Hunt
United States District Judge

21
22
23
24
25
26
2