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