Winer v. Strickland et al

Filing 61

ORDER: the motion for default judgment 59 is DENIED without prejudice to the filing of a renewed motion by April 10, 2017. Signed by Judge Jennifer A. Dorsey on 3/30/2017. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Leo Winer, et al.,

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Plaintiffs

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Order Denying Without Prejudice Motion
for Default Judgment

v.

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2:13-cv-00231-JAD-CWH

Steven A. Strickland., et al.,

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[ECF No. 59]
Defendants

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The Leo Winer Trust and the Michael J. Pepitone Trust jointly move for default judgment

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against Paul Strickland. At a status conference held the day the motion was filed, plaintiffs’

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counsel advised the court that they would be filing an errata to the motion to request separate

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judgments for each plaintiff. No errata has been filed, and the motion has several other

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deficiencies. I therefore deny the motion without prejudice and give plaintiffs until April 10,

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2017, to file a renewed motion for default judgment curing these deficiencies and requesting

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separate judgments for each plaintiff.

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Though plaintiffs analyze the Eitel factors in their motion, they do so in a conclusory

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fashion. For example, obtaining a default judgment requires plaintiffs to prove that they have

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stated a claim on which they may recover. Plaintiffs’ complaint contains 18 claims for relief, but

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plaintiffs make no attempt to articulate which of these are sufficiently plead or why. They also

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do not identify which claims entitle them to which relief. In their renewed motion, plaintiffs

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must identify which claim or claims supports each request for relief and explain why these claims

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are sufficiently plead and entitle plaintiffs to that relief.

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Plaintiffs also do not cite to the complaint or offer evidence to substantiate their default-

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judgment arguments. They cite exhibits that plaintiffs presumably intended to attach to the

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motion, but the motion has no exhibits. In their renewed motion, plaintiffs must cite facts in the

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complaint—which have been deemed admitted by virtue of Strickland’s default—or other

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evidence to support their factual assertions. As to their proof of damages, plaintiffs cross-

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reference exhibits attached to other motions. Plaintiffs must attach the exhibits on which they

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rely to their renewed motion because I will not cross-reference exhibits attached to other filings.1

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Finally, plaintiffs’ request for attorney’s fees does not comply with Local Rule 54-14

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because it is not supported by an attorney affidavit or a reasonable itemization and description of

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the work performed, nor does it address any of the factors listed under L.R. 54-14(3). Plaintiffs

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must consult Local Rule 54-14 if they choose to reurge this request.2

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Because this is plaintiffs’ first motion for default judgment, I will allow them a chance to

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cure these deficiencies. Plaintiffs have until April 10, 2017, to file a renewed motion for default

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judgment and rule-compliant request for attorney’s fees. If a renewed motion is not filed by this

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deadline, I will close this case without further notice. Accordingly,

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IT IS HEREBY ORDERED that the motion for default judgment [ECF No. 59] is
DENIED without prejudice to the filing of a renewed motion by April 10, 2017.

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DATED: March 30, 2017.

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_______________________________
Jennifer A. Dorsey
United States District Judge

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Plaintiffs’ lawyers also attempt to improperly authenticate an e-mail to one of the deceased
plaintiffs by stating in the motion that the referenced e-mail is a “true and correct copy” of the email. Plaintiffs’ lawyers do not sufficiently establish that they have the necessary personal
knowledge to authenticate this document.
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Plaintiffs argue their entitlement to attorney’s fees and request that the court order Strickland to
pay plaintiffs’ costs “in the amount of supported by a subsequently filed Supplement including a
Memorandum of Costs, and an Affidavit supporting the fees requested.” No supplement was
filed, and I will not rule on plaintiffs’ request for fees without the necessary documentation and
briefing. See, e.g., Local Rule 54-14.

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