Randazza et al v. Cox et al

Filing 173

ORDER Denying 157 Motion for Entry of Clerks Default. Signed by Judge Jennifer A. Dorsey on 3/7/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARC J. RANDAZZA, an individual,
JENNIFER RANDAZZA, an individual, and
NATALIA RANDAZZA, an individual,

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Plaintiffs,

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v.

Case No.: 2:12-cv-2040-JAD-PAL
Order Denying Plaintiff’s Motion for
Entry of Clerks’ Default- Doc. 157

CRYSTAL COX, an individual,

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Defendant.

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This cybersquatting case arises out of the alleged targeting of Plaintiffs Marc Randazza, his

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wife Jennifer, and their young daughter Natalia, by Defendant Crystal Cox, a self-proclaimed

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“investigative blogger.” The Randazzas allege that Cox and Bernstein have engaged in an online

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harassment campaign to extort them by registering dozens of internet domain names that incorporate

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the Randazzas’ names and then demanding they agree to purchase Cox’s “reputation management”

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services to remove this allegedly defamatory material from the internet and rehabilitate their cyber

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reputations.

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Early in the litigation, Cox appeared and submitted countless rogue filings and motions.

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Based on her abuse of the Federal Rules of Civil Procedure, Local Rules, and Special Orders, the

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Court was forced to revoke her electronic filing privileges.1 From that time and until only very

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recently, Cox failed to respond to Plaintiffs’ more recent motions and failed to keep a valid address

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Doc. 144.

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on file with the Court. Plaintiffs assert that their attempts to serve Cox with the motions have been

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thwarted because Cox refuses service by email and the P.O. Box where she previously received

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motions allegedly had been closed. Thus, Plaintiffs ask for a Clerks’ Entry of Default under Federal

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Rule of Civil Procedure 55(a) based on a purported failure to defend.

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DISCUSSION
Plaintiffs argue that because Cox has failed to defend the case because, although she has

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previously appeared, her failure to provide a forwarding address with which to accept service

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constitutes a deliberate attempt to avoid participating in litigation.2 Thus, Plaintiffs request the

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Court enter clerks’ default against Cox. However, although Cox had failed to respond to several of

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Plaintiffs’ motions, Cox has since appeared, shown cause as to why she had not responded, and has

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otherwise indicated a clear intent to continue to defend this suit.3

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Generally, “[w]hen a party against whom a judgment for affirmative relief is sought has

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failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk

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must enter the party’s default.”4 However, this rule only “applies only to parties who have never

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appeared in the action.”5 Where a party has “appeared” before the Court, the party is generally

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considered to have “otherwise defend[ed]” the suit.6 Thus, where a party defended against an initial

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complaint, but later failed to timely file responses to subsequently filed motions, entry of clerk’s

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default is inappropriate.7

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Doc. 157, Ex. 1.

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Doc. 169.

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

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Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 689 (9th Cir.

1988)(citing references omitted).

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Id.

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See Sembach v. Club One, No. 3:10–CV–00654–LRH–VPC, 2011 WL 6780881 at *1 (D.

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Nev. Dec. 27, 2011).

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Plaintiffs ask for a Clerks’ Entry of Default under Federal Rule of Civil Procedure 55(a)

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based on a purported failure to defend, but rely exclusively on authority discussing Judicial Entry of

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Default under Federal Rule of Civil Procedure 55(b)(2).8 Plaintiffs are not legally entitled to a

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Clerks’ Entry of Default because Cox has previously appeared in this case and defended against

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Plaintiffs’ original complaint. Moreover, to the extent Plaintiffs seek Judicial Entry of Default under

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Federal Rule of Civil Procedure 55(b)(2), Plaintiffs have not met their burden. Thus, the motion is

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denied.
CONCLUSION

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Accordingly, and with good cause appearing,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Entry of Clerks’ Default, Doc. 157,
is DENIED.
DATED March 7, 2014.

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_________________________________
Jennifer A. Dorsey
United States District Judge

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Compare Fed. R. Civ. P. 55(a) and Fed. R. Civ. P. 55(b)(1) with Fed. R. Civ. P. 55(b)(2).