Szymborski v. The State of Nevada et al

Filing 23

ORDER Denying 13 Motion for Entry of Clerks Default. Signed by Magistrate Judge Cam Ferenbach on 1/17/2023. (Copies have been distributed pursuant to the NEF - TRW)

Case 2:22-cv-01164-JAD-VCF Document 23 Filed 01/17/23 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
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LEE EDWARD SZYMBORSKI,
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Plaintiff,

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vs.

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THE STATE OF NEVADA, et al.,

Case No. 2:22-cv-01164-JAD-VCF

ORDER
Defendants.

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MOTION FOR ENTRY OF CLERK'S DEFAULT (EFC
NO. 13)

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Pro se plaintiff Lee Edward Szymborski filed a motion for entry of clerk’s default. ECF No. 13.

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The defendants filed a response. ECF No. 15. I deny Szymborski’s motion.
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I.

Background

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Plaintiff claims that he served all the defendants on November 14, 2022, and that the defendants

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did not file a response within 21 days. ECF No. 13. The defendants argue in their response that the

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plaintiff did not properly serve them and good cause exists to reject entry of default. ECF No. 15. The

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defendants also filed a motion to dismiss shortly after filing their response. ECF No. 16. Plaintiff argues

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in the reply that he did serve the defendants.

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II.

Analysis
Default judgment is appropriate "[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."
Fed. R. Civ. P. 55(a).

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Obtaining a default judgment is a two-step process:
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First, the party seeking a default judgment must file a motion for entry of
default with the clerk of a district court by demonstrating that the opposing
party has failed to answer or otherwise respond to the complaint, and,

Case 2:22-cv-01164-JAD-VCF Document 23 Filed 01/17/23 Page 2 of 3

second, once the clerk has entered a default, the moving party may then
seek entry of a default judgment against the defaulting party.

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See Goldberg v. Barreca, No. 2:17-CV-2106 JCM (VCF), 2020 U.S. Dist. LEXIS 33229, at 6

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(D. Nev. Feb. 26, 2020), citing to UMG Recordings, Inc. v. Stewart, 461 F. Supp. 2d 837, 840 (S.D. Ill.
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2006).
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"Normally, an appearance in an action involves some presentation or submission to the court.
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But because judgments by default are disfavored, a court usually will try to find that there has been an

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appearance by defendant." Direct Mail Specialists, Inc. v. Eclat Computerized Tech., Inc., 840 F.2d 685,

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689 (9th Cir. 1988); see also Wilson v. Moore & Assocs., Inc., 564 F.2d 366, 369 (9th Cir. 1977) ("The

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appearance need not necessarily be a formal one, i.e., one involving a submission or presentation to the

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court. In limited situations, informal contacts between the parties have sufficed when the party in default

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has thereby demonstrated a clear purpose to defend the suit.").

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I need not decide whether the defendants were properly served to decide this motion because
the defendants have now made an appearance by filing a motion to dismiss this case on the merits. The
defendants have indicated a clear purpose to defend this suit. I find that the defendants have shown good
cause. Since default is disfavored and cases should be decided on the merits, I deny plaintiff’s motion

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for entry of default with the clerk.
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ACCORDINGLY,
I ORDER that Szymborski’s motion for default (ECF No. 13) is DENIED.
NOTICE
Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and

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recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk

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of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal

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Case 2:22-cv-01164-JAD-VCF Document 23 Filed 01/17/23 Page 3 of 3

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may determine that an appeal has been waived due to the failure to file objections within the specified
time. Thomas v. Arn, 474 U.S. 140, 142 (1985).

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This circuit has also held that (1) failure to file objections within the specified time and (2)

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failure to properly address and brief the objectionable issues waives the right to appeal the District

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Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d

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1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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Pursuant to LR IA 3-1, the plaintiff must immediately file written notification with the court of any

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change of address. The notification must include proof of service upon each opposing party’s attorney,

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or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may

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result in dismissal of the action.
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IT IS SO ORDERED.
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DATED this 17th day of January 2023.
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_________________________

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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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