Agha-Kahn v. Pacific Community Mortgage Inc et al

Filing 90

ORDER that 77 Motion for Entry of Clerks Default is DENIED. Signed by Judge James C. Mahan on 8/25/16. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

SALMA AGHA-KHAN, M.D.,

8

Plaintiff(s),

9
10
11

Case No. 2:16-CV-1124 JCM (NJK)
ORDER

v.
PACIFIC COMMUNITY MORTGAGE, INC.,
et al.,
Defendant(s).

12
13

Presently before the court is plaintiff Salma Agha-Khan’s motion for entry of default (ECF

14

No. 77) against defendant Wells Fargo Bank, N.A. In the motion, plaintiff asserts that “Defendant

15

was served with a copy of the summons and complaint on June 1, 2016 . . .” and that “[a]n answer

16
17

to the complaint was due on June 21, 2016.” (ECF No. 77 at 4).
I.

Obtaining a default judgment is a two-step process. Eitel v. McCool, 782 F.2d 1470, 1471

18
19
20
21

Motion for Default Judgment

(9th Cir. 1986). First, “[w]hen a party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the
clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). Federal Rule of Civil Procedure
55(b)(2) provides that a court may enter a default judgment if plaintiff’s request is not accompanied

22

by “an affidavit showing the amount due . . . .” See Fed. R. Civ. P. 55(b)(1)–(2). No affidavit

23

indicating an amount of money due accompanies the present motion. (ECF No. 77). Therefore,

24

this court will consider the present motion. See Fed. R. Civ. P. 55(b)(2).

25

...

26

...

27

...

28
James C. Mahan
U.S. District Judge

...

1

According to docket records, it appears that the defendant was served on June 1, 2016.

2

(ECF No. 80). Defendant failed to answer or assert a defense within 21 days of that date.1 See

3

Fed. R. Civ. P. 12(a). However, plaintiff stipulated with defendant (also labeled as “Wells Fargo

4

National Financial Bank”) on July 14, 2016, to extend the deadline for responding to the complaint

5
6
7

to July 29, 2016. (ECF No. 49 at 1). In the stipulation, defendant “dispute[d] whether the
attempted service made on June 3, 2016, at a local Wells Fargo branch in Billings, Montana was
proper.” Id. Later, defendant filed a motion to extend the deadline to respond to August 12, 2016,
(ECF No. 62 at 2) which was granted by Magistrate Judge Koppe (ECF No. 63). On August 12,

8

2016, defendant filed a motion to dismiss. (ECF No. 67). No timely response to that motion has

9

been filed by plaintiff.

10

Local Rule IA 6-1(a) governs motions and stipulations to extend time. See LR IA 6-1(a).

11

The rule states that “[a] request made after the expiration of the specified period will not be granted

12

unless the movant or attorney demonstrates that the failure to file the motion before the deadline

13

expired was the result of excusable neglect.” Id.

14
15

This court agrees with magistrate Judge Koppe that defendant adhered to this rule by
explaining that additional time was necessary to respond to plaintiff’s complaint because the
service was disputed, defendant’s counsel was “recently retained,” and defendant’s counsel

16

“require[d] additional time to locate, organize, and review the relevant documents and prepare the

17

appropriate response.” (ECF No. 49 at 1). The second motion to extend time also conformed to

18

the rule because defendant’s counsel indicated that she had trial obligations during the last week

19

of July. (ECF No. 62 at 2). Therefore, these extensions of time were proper. Because defendant

20

filed a motion to dismiss (ECF No. 67) on the final day of the second extension period, (ECF No.

21

63) the motion is timely.
Consequently, defendant has appropriately asserted a defense. Thus, the requirements for

22
23
24
25

default judgment pursuant to Federal Rule of Civil Procedure 55(a) have not been met.
...
...
...

26
27
1

28
James C. Mahan
U.S. District Judge

There would still have been a lack of response within 21 days even assuming, arguendo,
that defendant is correct in its stipulation for extension (ECF No. 49) that service occurred on June
3, 2016.
-2-

1

Accordingly,

2

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for

3
4
5
6

entry of default (ECF No. 77) be, and the same hereby is, DENIED.
DATED August 25, 2016.
__________________________________________
UNITED STATES DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge

-3-