Kelly v. Las Vegas Metropolitan Police Department et al

Filing 164

ORDER Denying Plaintiff's 133 Motion for Entry of Clerk's Default. Signed by Judge Larry R. Hicks on 5/6/2014. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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GREGORY KELLY,

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Plaintiff,

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v.

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LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, et al.,

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Defendants.
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2:12-cv-02074-LRH-CWH
ORDER

Before the Court is Plaintiff Gregory Kelly’s (“Kelly”) Motion for Clerk’s Entry of Default

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Pursuant to Federal Rule of Civil Procedure 55(a). Doc. #133.1 Defendants John Campbell

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(“Campbell”) and Christopher Garcia (“Garcia”) filed a Response (Doc. #134), to which Kelly

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replied (Doc. #140).

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Pursuant to Federal Rule of Civil Procedure 55(a), a clerk’s entry of default is appropriate

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when “a party against whom a judgment for affirmative relief is sought has failed to plead or

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otherwise defend as provided by these rules . . . .” Kelly asserts that by failing to answer his

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Amended Complaint, Campbell and Garcia are subject to default. See Doc. #133. The Court

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disagrees. Here, Campbell and Garcia filed a Motion to Dismiss, evidencing their intent to defend

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against Kelly’s claims. See Doc. #106. The Court finds Campbell and Garcia’s action in this

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Refers to the Court’s docket number.

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regard to fall squarely within the ambit of the phrase “otherwise defend.” See Rashidi v. Albright,

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818 F. Supp. 1354, 1355-56 (D. Nev. 1993) (“[i]t is undisputed that a motion challenging a

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complaint for failure to state a claim upon which relief can be granted falls squarely within the

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ambit of the phrase ‘otherwise defend’”). Accordingly, clerk’s entry of default pursuant to Federal

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Rule of Civil Procedure 55(a) is not warranted.

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IT IS THEREFORE ORDERED that Kelly’s Motion for Clerk’s Entry of Default (Doc.
#133) is DENIED.
DATED this 6th day of May, 2014.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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