McGee v. Donahoe

Filing 251

ORDER Denying Plaintiff Lola McGee's 215 Motion for Entry of Clerk's Default and 216 Motion for Default Judgment. Signed by Judge Richard F. Boulware, II on 3/31/2019.(Copies have been distributed pursuant to the NEF - BEL)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

LOLA MCGEE,

8
9
10
11
12

Case No. 2:13-cv-01426-RFB-VCF
Plaintiff,

ORDER

v.
MEGAN J. BRENNAN, United States Postal
Service Postmaster General,
Defendant.

13
14

Before the Court are two contested motions: Plaintiff Lola McGee’s Motion for Entry of

15

Clerk’s Default (ECF No. 215) and Motion for Default Judgment (ECF No. 216). The Court

16

previously dismissed Plaintiff’s earlier motions for the same relief in its July 18, 2018 Order. ECF

17

No. 213 (denying ECF Nos. 193, 194).

18

participated in the litigation and the strong policy of deciding cases on their merits” resulted in

19

dismissal of Plaintiff’s previous motions.

The Court found that “Defendants have actively

20

The granting of a default judgment is a two-step process directed by Federal Rule of Civil

21

Procedure (“Rule”) 55. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). The first step is

22

an entry of clerk's default based on a showing, by affidavit or otherwise, that the party against

23

whom the judgment is sought “has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). The

24

second step is default judgment under Rule 55(b), a decision which lies within the discretion of

25

the Court. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Factors which a court, in its

26

discretion, may consider in deciding whether to grant a default judgment include: (1) the

27

possibility of prejudice to the plaintiff, (2) the merits of the substantive claims, (3) the sufficiency

28

of the complaint, (4) the amount of money at stake, (5) the possibility of a dispute of material fact,

1

(6) whether the default was due to excusable neglect, and (7) the Federal Rules' strong policy in

2

favor of deciding cases on the merits. Eitel, 782 F.2d at 1471-72.

3

The Court finds that default judgment is not warranted. As stated in the Court’s July 18,

4

2018 Order, Defendants have appeared in this matter and have continuously defended. See docket

5

generally. Indeed, the docket in this matter amassed over two hundred entries at the time Plaintiff

6

filed the pending motions. In conjunction with the continual defense, the Court finds that this

7

matter should be decided on its merits. The Court therefore denies Plaintiff’s two motions.

8

To be sure, to the extent that Plaintiff seeks reconsideration of the Court’s July 18, 2018

9

Order by resubmitting motions for entry of clerk’s default and for default judgment, the Court

10

denies the motions. “[A] motion for reconsideration should not be granted, absent highly unusual

11

circumstances, unless the district court is presented with newly discovered evidence, committed

12

clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, Inc.

13

v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation and citation

14

omitted). A motion for reconsideration “may not be used to raise arguments or present evidence

15

for the first time when they could reasonably have been raised earlier in the litigation.” Id.

16

Plaintiff has not presented highly unusual circumstances nor new evidence, clear error, or a change

17

in controlling law. The Court denies the motions to the extent Plaintiff submitted them as to

18

request reconsideration of the July 18, 2018 Order.

19
20

IT IS ORDERED that Plaintiff Lola McGee’s Motion for Entry of Clerk’s Default (ECF
No. 215) and Motion for Default Judgment (ECF No. 216) are DENIED.

21
22

DATED: March 31, 2019.

23

__________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

24
25
26
27
28

-2-