Shive v. Amazon.com Inc. et al

Filing 74

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning, Plaintiff James Shive's Second Motion for Default Judgment Against Defendant J&C Baseball Clubhouse, Inc., 73 is denied (meq)

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

No. CIV 15-0406 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
THIS MATTER comes before the Court on Plaintiff James Shive’s Second Motion for
Default Judgment Against Defendant J&C Baseball Clubhouse, Inc., filed April 5, 2017 (Doc.
73). The Court previously set aside default and denied Plaintiff James Shive’s Motion for
Default Judgment, filed February 23, 2017 (Doc. 71). See Memorandum Opinion and Order,
filed March 23, 2017 (Doc. 72)(“Order”). The Court previously explained that Shive could
reapply for a Clerk’s entry of default and may then refile his Motion for Default Judgment under
rule 55 of the Federal Rules of Civil Procedure.
Shive again filed for default judgment pursuant to rule 55, but did not reapply to the
Clerk of the Court for entry of default. As the Court previously explained, attaining default
judgment is a two-step process: the Clerk of the Court must enter default, and then the plaintiff
must move for default judgment. See Fed. R. Civ. P. 55; Williams v. Smithson, 57 F.3d 1081,
1995 WL 365988, at *1 (10th Cir. 1995)(Table)(“Rule 55 mandates a two-step process for a
party who seeks a default judgment in his favor.”). Because Shive has not applied for entry of

default from the Clerk of Court, the Court cannot presently grant his motion for default
judgment. See Fed. R. Civ. P. 55; Williams v. Smithson, 1995 WL 365988, at *1. The Court
will therefore deny Shive’s motion for default judgment.
IT IS ORDERED that Plaintiff James Shive’s Second Motion for Default Judgment
Against Defendant J&C Baseball Clubhouse, Inc., filed April 5, 2017 (Doc. 73), is denied.

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

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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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