Gould v. California Department of Corrections and Rehabilitation

Opinion

STEVEN ERIC GOULD, Case No. 19-cv-00015-HSG

Plaintiff, ORDER DENYING REQUEST FOR DEFAULT JUDGMENT AND v. JUDICIAL NOTICE; ORDER TO SHOW CAUSE WHY THE COURT LAURIE MARINO, et al., SHOULD NOT ENTER DEFAULT AGAINST ABC VENTURES LLC Defendants. Re: Dkt. No. 34

Plaintiff filed this pro se action pursuant to 42 U.S.C. § 1983 regarding constitutional violations that occurred at Correctional Training Facility (“CTF”) in Soledad, California, where he was previously housed. Now pending before the Court is plaintiff’s request for judicial notice and for entry of default judgment Dkt. No. 34. I. Request for Judicial Notice and for Entry of Default Judgment Plaintiff has requested that the Court take judicial notice of “the facts presented” in his motion and “the undisputable fact that Defendant(s) ABC Ventures LLC and owner Adam B. Clingerman are in default.” Dkt. No. 34 at 7. Plaintiff’s request is DENIED. Federal Rule of Evidence 201(b) permits a court to notice an adjudicative fact if it is “not subject to reasonable dispute.” Khoja v. Orexigen Therapeutics, 899 F.3d 988, 999 (9th Cir. 2018). “A fact is not subject to reasonable dispute if it is generally known, or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Id. (quoting Fed. R. Evid. 201(b)(1)-(2)) (internal quotation marks omitted). Plaintiff’s motion relies on numerous assertions Determinations as to whether a defendant has been served, is in default, or owes a sum certain are legal determinations, and not properly the subject of judicial notice. Plaintiff also requests that the Court enter default judgment against ABC Ventures LLC and in favor of plaintiff in the amount of $1.2 million. Plaintiff’s request is DENIED. A default judgment may only be entered against a defendant who has defaulted. Fed. R. Civ. P. 55(b). Here, an entry of default has not yet been entered against defendant ABC Ventures LLC. II. Ordering ABC Ventures LLC to Show Cause Why Default Should Not Be Entered Attached as Exhibit A to plaintiff’s request is defendant ABC Ventures’ waiver of reply and demand for jury trial. Dkt. No. 34 at 12-16. The waiver of reply is dated November 15, 2019, and the proof of service states that it was mailed that same day to plaintiff and to counsel for defendants Tucker, Koenig, Maurino and Kernan. Dkt. No. 34 at 16. This waiver of reply and demand for jury trial was not filed with the Court. It appears from this waiver of reply and demand for jury trial that defendant ABC Ventures LLC was properly served but has failed to defend itself in this suit. Pursuant to Fed. R. Civ. P. 55(a), “[w]hen 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.” Fed. R. Civ. P. 55(a). Within twenty-eight (28) days of the date of this order, defendant ABC Ventures LLC is ordered to show cause why the Court should not enter default against ABC Ventures LLC for failure to defend pursuant to Fed. R. Civ. P. 55(a)f. For the reasons set forth above, the Court orders as follows. 1. Plaintiff’s request for judicial notice and for entry of default judgment in the amount of $1.2 million against defendant ABC Ventures LLC (Dkt. No. 34) is DENIED. 2. Within twenty-eight (28) days of the date of this order, defendant ABC Ventures LLC is ordered to show cause why the Court should not enter default against ABC Ventures LLC for failure to defend pursuant to Fed. R. Civ. P. 55(a). The Clerk shall send copies of this order to ABC Ventures LLC, c/o Owner, Adam B. Clingerman, 2411 Old Crow Canyon Rd., Suite 170, 1 Old Crow Canyon Rd., Suite 170, San Ramon CA 94583. 2 This order terminates Dkt. No. 34. 4 Dated: 9/28/2020 ° mob S. GILLIAM, JR. / 6 United States District Judge 7 8 9 10 ll a 12

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