Vincent v. Stewart et al

Filing 95

ORDER denying 81 Motion to strike; denying 82 Motion for Reconsideration. Signed by Magistrate Judge Theresa L Fricke.**2 PAGE(S), PRINT ALL**(Gail Vincent, Prisoner ID: 897422)(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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GAIL VINCENT,
Case No. 3:16-cv-05023-RBL-TLF

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Plaintiff,
v.
BELINDA STEWART, et al,
Defendants.

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ORDER DENYING PLAINTIFF’S
MOTION TO STRIKE AND MOTION
FOR RECONSIDERATION

This matter comes before the Court on Mr. Vincent’s motion to strike (Dkt. 81) and

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motion for reconsideration (Dkt. 82) the Court’s Order denying his motion for default and

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motion for contempt (Dkt. 76). Having carefully considered that motion and the balance of the

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record, the Court hereby finds and ORDERS:

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On April 11, 2017, the Court issued an order denying Mr. Vincent’s motion for default

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against Defendant Joseph Williamson, noting that motions for default are generally disfavored

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and that there was no evidence either Mr. Williamson or defense counsel engaged in any dilatory

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conduct in regard to the late filed answer. The Court further found that because Mr. Vincent was

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not being deprived of the opportunity to obtain the relief he seeks by allowing the late filing, and

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because the Court already had shown Mr. Vincent some leniency with regard to the prosecution

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of his case, overall he would not be prejudiced. The motion for contempt was denied for the

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same reasons.

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Mr. Vincent’s asserted basis for striking the Court’s Order is that he did not actually file a

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ORDER DENYING PLAINTIFF’S MOTION TO STRIKE
AND MOTION FOR RECONSIDERATION - 1

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motion for default, but instead requested that the Clerk enter the default. Mr. Vincent sought “an

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entry of default” under Federal Rule of Civil Procedure (FRCP) 55. Dkt. 62, p. 2. As the Court

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previously pointed out, under that rule if a party’s claim is not “for a sum certain or a sum that

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can be made certain by computation,” then the party seeking default “must apply to the court for

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a default judgment.” Dkt. 76, pp. 1-2; see also FRCP 55(b). Mr. Vincent’s claim was not for a

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sum certain, nor at that stage of the proceedings could it have been made certain by computation.

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Thus, the Court accurately interpreted plaintiff’s request as a motion for default, and properly

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denied that same motion.

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As for Mr. Vincent’s motion for reconsideration, such motions are disfavored, and the

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Court “will ordinarily deny such motions in the absence of a showing of manifest error in the

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prior ruling or a showing of new facts or legal authority which could not have been brought to its

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attention earlier with reasonable diligence.” Local Rule (LCR) 7(h). Mr. Vincent argues that the

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Court committed manifest error, “because the Ninth Circuit requires a finding of contempt and

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Mr. Williamson did not perform ‘all reasonable steps.’” Dkt. 82, p. 1. These arguments are not

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new; the plaintiff is reiterating the same arguments previously raised in support of his motion for

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contempt.

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Accordingly, the motion to strike (Dkt. 81) and the motion for reconsideration (Dkt. 82)
are DENIED.
Dated this 18th day of May, 2017.

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A

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Theresa L. Fricke
United States Magistrate Judge

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ORDER DENYING PLAINTIFF’S MOTION TO STRIKE
AND MOTION FOR RECONSIDERATION - 2