Perez v. Morgan et al

Filing 38

ORDER denying 33 Motion for Default, and denying 34 Motion for Default Judgment. Signed by Magistrate Judge Karen L Strombom.**2 PAGE(S), PRINT ALL**(Daniel Perez, Prisoner ID: 888274)(CMG)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 5 6 7 DANIEL JAY PEREZ, No. C16-6023 RBL-KLS 8 9 10 Plaintiff, RICHARD MORGAN, et al, 11 12 ORDER DENYING PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT AND MOTION FOR DEFAULT v. Defendants. Plaintiff requests entry of default (Dkt. 33) and entry of a default judgment (Dkt. 34) 13 against Defendant David M. Guidry. Plaintiff states that Defendant Guidry has failed to plead 14 15 or otherwise defend although more than 58 days have passed since the date of service. Dkt. 33, 16 at 1; Dkt. 33-2, at 1. Plaintiff brings his motions pursuant to Rule 55 of the Federal Rules of 17 Civil Procedure, which provides in relevant part: 18 19 20 (a) Entering a Default. When 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, the clerk must enter the party's default. (b) Entering a Default Judgment. 21 22 23 24 25 26 (1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk--on the plaintiff's request, with an affidavit showing the amount due--must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person. (2) By the Court. In all other cases, the party must apply to the court for a default judgment. . . . ORDER - 1 1 Id. “The district court’s decision whether to enter a default judgment is a discretionary one.” 2 Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Factors which may be considered by 3 courts in exercising discretion as to the entry of a default judgment include: 4 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 5 6 7 8 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Default judgments are ordinarily 9 disfavored and cases “should be decided upon their merits whenever reasonably possible.” Id. at 10 11 1472. 12 Here, there is no basis for entry of a default judgment against Defendant Guidry. 13 Defendant Guidry filed a Waiver of Service of Summons with the Court on February 27, 2017. 14 Dkt. 32. Guidry acknowledged that he received the Court’s request to waive service on 15 February 23, 2017. Id. Pursuant to the terms of the Waiver, Defendant Guidry must file an 16 answer or motion under Fed. R. Civ. P. 12 within “60 days after February 13, 2017.” Id. 17 Thus, Defendant Guidry’s deadline – April 14, 2017 – has not yet passed. 18 19 Accordingly, the Clerk shall not be directed to enter a default and plaintiff’s motions 20 (Dkt. 33 and 34) are DENIED. The Clerk shall send a copy of this Order to plaintiff and to 21 counsel for defendants. 22 DATED this 14th day of April, 2017. A 23 24 Karen L. Strombom United States Magistrate Judge 25 26 ORDER - 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?