Hickey Moosman v. Hickey et al
MEMORANDUM DECISION AND ORDER granting 15 Motion to Amend/Correct Complaint. Plaintiff shall file her First Amended Complaint within 14 days of the entry of this Order. denying 18 Motion for Default Judgment. It is further Ordered that the follo wing are Moot: Defendant Well's Fargo's Objection to Plaintiff's proposed Findings, Conclusions and Order 20 , Well's Fargo's Motion to Strike Plaintiff's proposed Findings, Conclusions, and Order 20 , Plaintiff's Notice of Application for Writ of Execution 26 , Defendant First American Title's Objection to the Notice of Application for a Writ of Execution 27 , and Plaintiff's second Notice of Application for Writ of Execution 28 . Signed by Judge Ted Stewart on 5/16/2011. (las)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
RACHEL MARIE SOUTHWICK HICKEY
MEMORANDUM DECISION AND
ORDER ON PENDING MOTIONS,
OBJECTIONS, AND NOTICES OF
CHRISTIAN FREDERICK HICKEY, et al.,
Case No. 2:10-CV-486 TS
This case comes before the Court in a confused procedural posture. Before the
Court are the following: Plaintiff’s Motion for Leave to File an Amended Complaint;1
Plaintiff’s First Motion for a Default Judgment;2 Defendant Well’s Fargo’s Objection to
Plaintiff’s proposed Findings, Conclusions and Order;3 Well’s Fargo’s Motion to Strike
Plaintiff’s proposed Findings, Conclusions, and Order; Plaintiff’s Notice of Application for
Docket No. 15.
Docket No. 18.
Docket No. 18, at 6-10.
a Writ of Execution,4 and Defendant First American Title’s Objection to the Notice of
Application for a Writ of Execution,5 and Plaintiff’s second Notice of Application for a Writ
of Execution.6 The Court grants the Motion for Leave to File an Amended Complaint,
denies the First Motion for a Default Judgment, and finds that the Motion to Strike, the
Objections, and Plaintiff’s two Notices of Applications for Writ of Execution are moot.
Plaintiff’s Motion for Leave to File an Amended Complaint
This Motion is unopposed. Therefore, the Court will grant leave to file the proposed
First Amended Complaint. Plaintiff shall file her proposed First Amended Complaint within
14 days of the entry of this Order. The Court notes that the copy currently in the file as a
proposed amendment is insufficient for filing—the First Amended Complaint must be
separately filed after the entry of this Order granting leave to file it.
Plaintiff’s First Motion for a Default Judgment and Defendant Well’s Fargo’s
Objection to Plaintiff’s proposed Findings, Conclusions and Order
The document docketed by Plaintiff’s counsel as a First Motion for Default
Judgment7 is actually a copy of Plaintiff’s proposed default judgment. That proposed
default judgment appears to relate to Docket No. 10. Docket No. 10, as filed by Plaintiff’s
Docket No. 26.
Docket No. 16. The Court notes that this document is filed as a second Motion
for Leave to Amend because leave to amend had not been granted. The more correct
method to file a proposed amended complaint is to attach it as an exhibit to the Motion
for Leave to Amend.
Docket No. 28.
Docket No. 18.
counsel, consists of a Motion for Default Certificate,8 a proposed default certificate,9 a
Motion for Default Judgment,10 a document styled proposed Findings of Fact and
Conclusions of Law, and Order on Motion for Default Judgment11 (proposed Findings,
Conclusion, and Order), a Request to Submit for Decision,12 and a proposed Notice of
Thus, when filing Docket No. 10, Plaintiff’s counsel inappropriately combined two
separate motions, submitted a proposed order as part of the document rather than as a
separate attached exhibit,14 and improperly filed the Request to Submit as part of the
Motion prior to the expiration of the time to respond.15 Because Docket No. 10 contains
two separate motions filed as one motion, and because the proposed Findings, Conclusion
and Order is not filed as a separate attachment, the docket is confused.16 This confusion
Docket No. 10 at 1-2.
Id. at 3.
Id. at 4-5.
Id. at 6-8.
Id. at 9.
Id. at 10.
See CM/ECF Administrative Procedures, Rule G(1) (providing, in part: “An
additional copy of the proposed order, . . . or findings of fact and conclusions of law
shall be saved as a PDF file and filed electronically as attachment to the motion to
which the order relates or, for other documents, as ordered by the Court.”
See DUCivR 7-3 (setting forth requirements for requests to submit).
For example, Well’s Fargo’s Objection and Motion filed at Docket No. 20
appears to be an objection to the docket text order at Docket No. 17, when it is actually
is exacerbated by Plaintiff’s counsel having chosen to file the improperly combined
documents under the docket title “Plaintiff’s Motion for Default Judgment” rather than as
a motion for entry of default, when entry of such a default must necessarily be entered
before it is appropriate to request a default judgment.17 It appears that Docket No. 18 is
the proposed Default Judgment that Plaintiff seeks to have entered in connection with
motion for default judgment found at Docket No. 10.18
As a result of this confusion, on October 5, 2010, the Court entered a docket text
order19 granting Docket No. 10, which had been docketed by Plaintiff’s counsel as Plaintiff’s
Motion for a Default Judgment against Defendant Hickey. However, an actual default
judgment was not entered.20
An actual default judgment was not entered because, under Fed. R. Civ. P. 54(b),
such a default judgment against less than all of the parties would only be interlocutory and
would, therefore, be subject to revision up to the time of the entry of final judgment closing
this case. As set forth in Fed. R. Civ. P. 54(b):
When an action presents more than one claim for relief . . . or when multiple
parties are involved, the court may direct entry of a final judgment as to one
an objection to and motion to strike the proposed Findings, Conclusion, and Order
found at Docket No. 10, at 6-8.
Compare Fed. R. Civ. P. 55(a) (entering a default) and 55(b) (entering a default
Docket No. 10 at 4-5.
Docket No. 17.
See Fed. R. Civ. P. 58 (requiring that every judgment “must be set out in a
or more, but fewer than all, . . . parties only if the court expressly determines
that there is no just reason for delay. Otherwise, any order or other decision,
however designated, that adjudicates fewer than all of the claims or the right
and liabilities of fewer than all of the parties does not end the action as to
any of the claims or parties and may be revised at any time before entry of
judgment adjudicating all of the claims and all the parties’ rights and
In the present case the Court cannot find that there is no just reason for delay of
entry of a final judgment against Defendant Hickey at the present time. First, Plaintiff has
not requested such certification. Second, it is significant that each of the five claims for
relief in the Complaint is brought against all of the Defendants and their liability is alleged
to be joint and several,22 but only Defendant Hickey has defaulted.23 Under controlling
Supreme Court case law, Frow v. De La Vega,24 “when one of several defendants who is
alleged to be jointly liable defaults, judgment should not be entered against that defendant
until the matter has been adjudicated with regard to all defendants or all defendants have
Fed. R. Civ. P. 54(b).
Docket Nos. 1-3 (Complaint) at 15.
Docket No. 13 Clerk’s Entry of Default Certificate as to Christian Frederick
15 Wall. 552, 82 U.S. 552 (1872).
10A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure §
2690 (3d ed. 2005) (citing Frow) (hereinafter Wright & Miller); Hunt v. Inter-Glove
Energy, Inc., 770 F.2d 145, 147 (10th Cir. 1985) (holding that where complaint’s claims
were for fraud and securities violations, the Plaintiff having chosen to initiate a single
claim involving joint liability, Plaintiff may not split its claim and proceed to damages
against the defaulters and then proceed to a separate damages award against the
As explained in Frow:
The defaulting defendant has merely lost his standing in court. He will not
be entitled to service of notices in the cause, nor to appear in it in any way.
He can adduce no evidence, he cannot be heard at the final hearing. But if
the suit should be decided against the complainant on the merits, the bill will
be dismissed as to all the defendants alike-the defaulter as well as the
others. If it be decided in the complainant's favor, he will then be entitled to
a final decree against all. But a final decree on the merits against the
defaulting defendant alone, pending the continuance of the cause, would be
incongruous and illegal.26
However, a default judgment may be entered in some circumstances against
severally liable defendants.27 But the Frow analysis has been extended to cases where
Defendants have closely related defenses.28
As previously noted, the present record is insufficient to show that there is no just
reason for delay in the entry of a final judgment as to Defendant Hickey. Further, under
Frow, it appears that it would be inappropriate to enter final judgment as to defaulted
Defendant Hickey when his liability is alleged to be joint and several with the non-defaulting
82 U.S. at 554. See also Haines v. Fisher, 82 F.3d 1503, 1511 (10th Cir. 1996)
(holding that entry of judgment of zero against defaulting defendant proper where jury
found no damages were proven).
See Wright & Miller, supra note 24, § 2690 and cases cited therein.
Wright & Miller, supra n.24; In re First T.D. & Inv., Inc., 253 F.3d 520, 532 (9th
Cir. 2001) (holding “it would be incongruous and unfair to allow the Trustee to prevail
against Defaulting Defendants on a legal theory rejected by the bankruptcy court with
regard to the Answering Defendants in the same action”); Gulf Coast Fans, Inc. v.
Midwest Elecs. Imps. Inc., 740 F.2d 1499, 1512 (11th Cir. 1984) (applying Frow and
vacating default judgment against defaulting defendant for breach of contract because
even though defendants not jointly liable because jury found contract was not
Defendants. Therefore, the Court will deny the request for entry of a default judgment as
to Defendant Hickey.
Because the Court is denying Plaintiff’s First Motion for Default Judgment, Wells
Fargo’s Objection to the proposed Findings, Conclusions, and Order is moot.
Well’s Fargo’s Motion to Strike
Wells Fargo also moves to strike Plaintiff’s proposed Findings, Conclusions, and
Order for two reasons. First, because it addresses the purported joint and several liability
of all Defendants, even though there is a default only as to Defendant Hickey. Second,
because under Fed. R. Civ. P. 12(f), it is “insufficient, . . . impertinent or scandalous.” The
Court finds that this Motion to Strike is mooted by the denial of the First Motion for Default
Judgment. In addition, Rule 12(f) provides for material to be stricken from “pleadings” and
the proposed Findings, Conclusions, and Order is not a pleading.29
Plaintiff’s Two Notices of Application for a Writ of Execution and Defendant
First American Title’s Objection
Plaintiff’s Notice of Application for a Writ of Execution is a copy of the proposed writ
of execution. Plaintiff also filed a copy of the same proposed writ as a proposed order
relating to the October 5, 2010 docket text order granting the Motion for entry of default
judgment.30 As First American Title points out in its Objection, the proposed Writ purports
to execute on “a certain debt of $1,000,000 against Wells Fargo Bank, American First Title
their successors, assignees (HSBC), officers, agents, and employees” when Plaintiff has
See Fed. R. Civ. P. 7 (a) (listing allowed pleadings).
Docket No. 25.
not obtained any default or default judgment against Wells Fargo, American First Title or
any party other than Hickey. Subsequent to the filing of First American Title’s Objection,
Plaintiff filed a second Notice of Application for a Writ of Execution (Docket No. 28).31
The Court finds that Plaintiff’s two Applications for Writs of Execution and America
First Title’s Objection are mooted by the denial of Plaintiff’s First Motion for Default
Ex Parte Emails
The Court notes that chambers have been copied with or forwarded two emails sent
by Plaintiff’s counsel, each of which includes attachments. Pursuant to its standard policy,
the Court has not reviewed those emails because they were not copied on all counsel to
Plaintiff’s counsel is reminded that ex parte contacts with the Court are
prohibited. All communications from counsel, including emails, must, with extremely limited
exceptions, be copied to all counsel.
Based on the foregoing, it is
ORDERED that Plaintiff’s unopposed Motion for Leave to File Amended Complaint
(Docket No. 5) is GRANTED and Plaintiff shall file her First Amended Complaint within 14
days of the entry of this Order. It is further
ORDERED that Plaintiff’s First Motion for a Default Judgment (Docket No. 18) is
DENIED. It is further
Without explanation, Plaintiff’s counsel attaches several documents from a
related state court case to the second Notice of Application for a Writ of Execution.
ORDERED that the following are MOOT: Defendant Well’s Fargo’s Objection to
Plaintiff’s proposed Findings, Conclusions and Order (Docket No. 20), Well’s Fargo’s
Motion to Strike Plaintiff’s proposed Findings, Conclusions, and Order (Docket No. 20);
Plaintiff’s Notice of Application for a Writ of Execution (Docket No. 26), Defendant First
American Title’s Objection to the Notice of Application for a Writ of Execution (Docket No.
27), and Plaintiff’s second Notice of Application for Writ of Execution (Docket No. 28).
DATED May 16, 2011.
BY THE COURT:
United States District Judge
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