Shive v. Amazon.com Inc. et al

Filing 72

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning, the Plaintiff's Motion for Default Judgment Against Defendant J&C Baseball Clubhouse, Inc., 71 is denied; and the Clerk's Entry of Default, 60 is set aside. (meq)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JAMES SHIVE,
Plaintiff,
vs.

No. CIV 15-406 JB/WPL

AMAZON.COM INC.; EBAY, INC.;
JOHN LAVECCHIA; J&C BASEBALL
CLUBHOUSE, INC.; SEARS HOLDING
CORPORATION; UNBEATABLE
SALE.COM, INC. and WAL-MART STORES,
INC.,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR DEFAULT
JUDGMENT AND SETTING ASIDE DEFAULT
THIS MATTER comes before the Court on the Plaintiff’s Motion for Default Judgment
Against Defendant J&C Baseball Clubhouse, Inc., filed February 23, 2017 (Doc. 71). The Clerk
of the Court entered default against J&C Baseball on August 8, 2016, see Clerk’s Entry of
Default, filed August 8, 2016 (Doc. 60), approximately three months after the Court allowed
Plaintiff James Shive to reinstate J&C Baseball as a Defendant, see Order Granting Motion to
Reinstate Defendant, filed May 19, 2016 (Doc. 58)(“Order of Reinstatement”). However, on
August 23, 2016, after J&C Baseball was reinstated as a Defendant, the Honorable William P.
Lynch, United States Magistrate Judge for the United States District Court for the District of
New Mexico, ordered Shive to re-serve J&C Baseball with (i) the Summons; (ii) the Verified
Complaint for Copyright Infringement, filed May 12, 2015 (Doc. 1); (iii) the Order of
Reinstatement; and (iv) several additional filings. See Order, filed August 23, 2016 (Doc. 61).
This process took approximately six months. See Motion for Extension of Time, filed December

1, 2016 (Doc. 66); Order Granting Plaintiff’s Motion for Extension of Time, filed December 7,
2016 (Doc. 67); Motion for Extension of Time, filed January 9, 2017 (Doc. 68); Order Granting
Plaintiff’s Motion for Extension of Time, filed January 13, 2017 (Doc. 69); Proof of Service,
filed February 16, 2017 (Doc. 70).
Shive now moves for default judgment pursuant to rule 55 of the Federal Rules of Civil
Procedure. The case’s procedural history makes entry of default judgment against J&C Baseball
inappropriate. Attaining default judgment is a two-step process: the Clerk must enter default,
and then the plaintiff must move for default judgment. In this case, the Clerk’s entry of default
was premature. It is unclear that J&C Baseball was served with the Order of Reinstatement on
August 8, 2016. Accordingly, the Court exercises its considerable discretion in the area of
default to set aside the Clerk’s entry of default. Now that it is clear that J&C Baseball has been
appropriately served, Shive may reapply for a Clerk’s entry of default and may refile his Motion
for Default Judgment under rule 55.
IT IS ORDERED that (i) the Plaintiff’s Motion for Default Judgment Against Defendant
J&C Baseball Clubhouse, Inc., filed February 23, 2017 (Doc. 71), is denied; and (ii) the Clerk’s
Entry of Default, filed August 8, 2016 (Doc. 60), is set aside.

________________
____________
UNITED STATES DISTRICT JUDGE
Parties and counsel:
James Shive
Rio Rancho, New Mexico
Plaintiff pro se

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Gregory L. Doll
Ronald M. St. Marie
Doll Amir & Eley, LLP
Los Angeles, California
Attorneys for Defendant Amazon.com Inc.
Luis M. Ortiz
Richard H. Krukar
Kevin Lee Soules
Ortiz & Lopez, PLLC
Albuquerque, New Mexico
Attorneys for Defendant Sears Holding Corporation
Justin D. Rodriguez
Ryan Tobin Jerman
Atkinson Thal & Baker, P.C.
Albuquerque, New Mexico
Attorneys for Defendant Unbeatable Sale.com, Inc.
Justin D. Rodriguez
Atkinson Thal & Baker, P.C.
Albuquerque, New Mexico
-- and -Stefan M. Mentzer
White & Case LLP
New York, New York
-- and -Bijal V. Vakil
White & Case LLP
Palo Alto, California
Attorneys for Wal-Mart Stores, Inc.

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