Hernandez v. La Fuente Ltd et al

Filing 20

ORDER signed by Judge Rudolph T. Randa on 6/20/2013 DENYING 16 Motion for Entry of Default. Telephonic Scheduling Conference set for 8/21/2013 at 9:30 AM (Central Time) before Judge Rudolph T. Randa. The Court will initiate the call. See Order for details. (Attachments: # 1 Attachment A) (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CRISTAL HERNANDEZ,
Plaintiff,
-vsCase No. 13-C-366
LA FUENTE Ltd., LA FUENTE KOSSOW Ltd.,
JOSE G. ZARATE, ELVA NAVEJAR,
Defendants

DECISION AND ORDER

The plaintiff, Cristal Hernandez, moved for entry of default against defendant
La Fuente Kossow, Ltd under Federal Rule of Civil Procedure 55(a). The Court
directed the Clerk of Court not to enter default at that time, even though La Fuente
Kossow’s failure to “plead or otherwise defend” was “shown by affidavit.” This was a
mistake because the language of the rule is mandatory — “the clerk must enter the
party’s default.” In any event, because this defendant appeared and filed an answer
shortly thereafter, the Court finds that there would be good cause to vacate the entry of
default had it been entered. Fed. R. Civ. P. 55(c); Judson Atkinson Candies, Inc. v.
Latini-Hohberger Dhimantec, 529 F.3d 371, 386 (7th Cir. 2008) (“the district court
ha[s] the authority to set aside sua sponte an entry of default . . . for good cause”).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
1.

Hernandez’s motion for the entry of default [ECF No. 16] is DENIED;

2.

Pursuant to Federal Rule of Civil Procedure 16(b), a telephonic
scheduling conference is scheduled for August 21, 2013 at 9:30 a.m.
(Central Time). Please be available at that time. The Court will initiate
the call.

3.

The purpose of the conference call is to establish a scheduling order
which will limit the time: (a) to join other parties and to amend the
pleadings; (b) to file motions; (c) to complete discovery;

4.

The scheduling order may also: (a) modify the timing for disclosure
under Rules 26(a) and 26(e)(1) and of the extent of discovery to be
permitted; (b) provide for the disclosure or discovery of electronically
stored information; (c) include any agreements the parties reach for
asserting claims of privilege or protection as trial preparation material
after information is produced; (d) the date or dates for conferences
before trial, a final pretrial conference, and trial; and (e) any other
matters appropriate in the circumstances of the case;

5.

The time limitations set forth in the scheduling order may only be
modified for good cause and with the Court’s consent. Fed. R. Civ. P.
16(b)(4);

6.

The parties should be prepared to discuss the matters listed in Civil
Local Rule 16(a)(1). Please refer to Attachment A. Special attention
should also be given to Rule 26(f)(1), which requires the parties to
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conduct a settlement/discovery conference at least twenty-one (21) days
prior to the initial scheduling conference described above. The Rule
26(f) conference may be conducted by telephone. Rules 26(f)(2) and
(3) mandate that the parties, within fourteen (14) days of their
conference: (a) file a written report outlining the proposed discovery
plan they have developed at their Rule 26(f) conference; and (b) make
the required initial disclosures under Rule 26(a) regarding witnesses and
documents. In addition to the matters specified in Rules 26(f)(2) and
(3), the Court requests that the proposed discovery plan submitted by
the parties include one or two sentences stating the nature of the case;
7.

The written report must include the telephone numbers where the parties
can be reached for this call.

Dated at Milwaukee, Wisconsin, this 20th day of June, 2013.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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