Top Rank Builders, Inc. et al v. Browning et al

Filing 26

ORDER Denying #16 Motion for Entry of Clerks Default. Signed by Magistrate Judge Carl W. Hoffman on 6/7/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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TOP RANK BUILDERS, et al.,
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Plaintiffs,
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vs.
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WILLIAM B. BROWNING, et al.,
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Defendants.
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__________________________________________)

Case No. 2:16-cv-02903-APG-CWH
ORDER

Presently before the court is Plaintiffs Top Rank Builders and Efrain Rene Morales’ default

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form (ECF No. 16), which was docketed under the filing event “motion for entry of clerk’s

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default,” filed on March 14, 2017.

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Plaintiffs filed their complaint (ECF No. 1) on December 15, 2016. On March 13, 2017,

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Plaintiffs filed a default form (ECF No. 14) for Defendant American Wind and Solar, Inc., which

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includes a blank signature block for the Clerk of Court. Attached to the form is an affidavit of

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service stating that this defendant was served on January 27, 2017. (Id. at 2.) The Clerk of Court

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entered a notice (ECF No. 15) informing Plaintiffs’ attorney that an outdated form was filed. On

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March 14, 2017, Plaintiffs filed an updated default form (ECF No. 16) along with the same

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affidavit of service. On March 15, 2017, the Clerk of Court entered a notice (ECF No. 17) advising

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Plaintiffs’ attorney to file a motion requesting entry of clerk’s default along with the form and

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affidavit of service. To date, Plaintiffs have not done so. Meanwhile, on March 16, 2017—fifty

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two days after being served with the complaint—Defendant American Wind and Solar, Inc. filed an

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answer (ECF No. 18) and is now participating in discovery in this case.

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Under Federal Rule of Civil Procedure 12(a)(1)(A)(I), a defendant must serve an answer
within 21 days after being served with the summons and complaint. Failure to do so may result in

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an entry of default under Rule 55 of the Federal Rules of Civil Procedure. Specifically, under Rule

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55(a), the clerk must enter default “[w]hen a party against whom a judgment for affirmative relief is

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sought has failed to plead or otherwise defend.”

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Although it appears that by filing the default form Plaintiffs were attempting to move for

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entry of a clerk’s default under Rule 55(a), Plaintiffs never filed a motion as they were directed to

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do so. Thus, the Clerk of Court did not enter a default against Defendant American Wind and

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Solar, Inc. Plaintiffs did take any other action with respect to this Defendant after it filed its

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answer, and this Defendant participated in the Rule 26(f) conference and in drafting the proposed

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discovery plan and scheduling order in this case. (See ECF No. 24.) To the extent that Plaintiffs

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were attempting to move for the clerk’s entry of default against Defendant American Wind and

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Solar, Inc., it appears that Plaintiffs have abandoned this motion. The court therefore will deny the

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motion.

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IT IS SO ORDERED.

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DATED: June 7, 2017

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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