Smith v. Accredited Home Lenders, Inc et al

Filing 28

ORDER. IT IS HEREBY ORDERED that 27 Plaintiff's Motion for Default Judgment is DENIED. If plaintiff has not obtained default against Accredited and filed a proper motion for default judgment by 8/30/2017, this case will be dismissed for want of prosecution. Signed by Judge Jennifer A. Dorsey on 8/9/17. (Copies have been distributed pursuant to the NEF - MR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Raymond Smith, 5 2:15-cv-0565-JAD-GWF Plaintiff Order Denying Motion for Default Judgment 6 v. 7 Accredited Home Lenders, et al., 8 [ECF No. 27] Defendants 9 10 Little has been done in this two-year-old case. On July 6, 2017, the Clerk of Court notified 11 plaintiff Raymond Smith that “[i]f no action is taken in this case by 8/5/17, the court shall enter an 12 order of dismissal for want of prosecution.”1 One day before that deadline, Smith filed a motion for 13 default judgment against non-appearing defendant Accredited Home Lenders.2 14 Plaintiff skipped a required step in the default-judgment process. As the Ninth Circuit Court 15 of Appeals explained in Eitel v. McCool, Rule 55 requires a “two-step process” consisting of: FIRST 16 asking the Clerk of Court to enter default against the non-answering defendant; and then SECOND, 17 after the clerk has entered default, filing a motion (properly supported by a memorandum of points 18 and authorities3) asking the judge to enter default judgment.4 Because no default against Accredited 19 has been requested or entered, plaintiff’s request for a default judgment is not ripe. 20 21 Even if the plaintiff had first asked the clerk to enter default, this motion for default judgment would be denied. Before the court can grant a request for default judgment, the court must evaluate 22 1 ECF No. 26. 24 2 ECF No. 27. 25 3 L.R. 7-2(a). 26 4 23 27 28 See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) (“Eitel apparently fails to understand the two-step process required by Rule 55.”); accord Symantec Corp. v. Global Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009) (noting that Rules 55(a) and (b) provide a two-step process for obtaining a default judgment). 1 1 several factors including: “(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s 2 substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; 3 (5) the possibility of a dispute concerning material facts; (6) whether the default was due to 4 excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring 5 decisions on the merits.”5 Plaintiff has not addressed these factors at all, let alone demonstrated why 6 they favor default judgment here. Plaintiff is cautioned that, if is able to obtain the entry of default 7 against Accredited and he wants to renew his request for a default judgment, he must provide a 8 detailed analysis of the factors listed above and how they support a default judgment against 9 Accredited. 10 ORDER 11 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion for Default Judgment [ECF 12 No. 27] is DENIED. If plaintiff has not obtained default against Accredited and filed a proper 13 motion for default judgment by August 30, 2017, this case will be dismissed for want of prosecution. 14 Dated this 9th day of August, 2017 15 _________________________________ Jennifer A. Dorsey United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Eitel,782 F.2d at 1471–72. 2

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