Johnson v. Holms

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 ADRIAN JOHNSON, ) 4 ) Plaintiff, ) Case No.: 2:18-cv-00647-GMN-EJY 5 vs. ) ) ORDER 6 SGT D. HOLMS, et al. ) 7 ) Defendants. )) 8 )

9 10 Pending before the Court is Plaintiff Adrian Johnson’s (“Plaintiff”) Motion for Default 11 Judgment, (ECF No. 44). Defendant Michael Murphy (“Murphy”) filed a Response, (ECF No. 12 45), and Plaintiff filed a Reply, (ECF No. 46). 13 Also pending before the Court is Plaintiff’s Motion to Consolidate Cases, (ECF No. 48). 14 For the reasons discussed below, the Court DENIES the Motions. 15 A. Motion for Default Judgment 16 Plaintiff seeks entry of default against Murphy, alleging that Murphy untimely filed his 17 Answer. (See Mot. Default J. 1:15–28, ECF No. 44). Murphy argues that granting default 18 would be improper because he has appeared in this case, and his Answer, (ECF No. 42), was 19 timely filed. (Resp. Mot. Default J. 1:19–2:1, ECF No. 45). The Court agrees. 20 Obtaining a default judgment is a two-step process governed by Rule 55 of the Federal 21 Rules of Civil Procedure. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). First, the 22 moving party must seek an entry of default from the clerk of court. Fed. R. Civ. P. 55(a). If the 23 clerk grants default against a party who has made an appearance to defend himself in the action, 24 the clerk’s entry of default is “void ab initio.” Franchise Holding II, LLC v. Huntington Rests. 25 Grp., Inc., 375 F.3d 922, 927 (9th Cir. 2004) (citation omitted). Once the clerk of court enters 1 default, a party must separately seek entry of default judgment from the court in accordance 2 with Rule 55(b). 3 Here, Plaintiff has not first obtained clerk’s entry of default as required. Even if Plaintiff 4 had obtained clerk’s entry of default, the default would be void because Murphy has appeared 5 in the action and filed an Answer to the Complaint. (See Answer, ECF No. 42). The Answer is 6 timely because it was filed within twenty-one days from service of the Complaint. (See id.) 7 (dated January 23, 2020); (Order, ECF No. 37) (providing Murphy twenty-one days from 8 January 2, 2020 to file a responsive pleading). Accordingly, the Court DENIES Plaintiff’s 9 Motion for Default Judgment. 10 B. Motion to Consolidate 11 Plaintiff asks the Court to consolidate this case with Johnson v. Berndt, et al., Case No. 12 2:20-cv-00150-JAD-EJY, arguing that the cases are related. (Mot. Consolidate 1:15–2:14, ECF 13 No. 48). In the alternative, Plaintiff requests that the Court waive the filing fee in his new case. 14 (Id. 2:14). 15 Under Federal Rule of Civil Procedure 42(a)(2), the Court may, in its discretion, 16 consolidate actions involving common questions of law or fact. Here, the cases do not involve 17 common questions of fact because the Complaints allege claims relating to different incidents 18 and share none of the same defendants. (Compare Am. Compl., ECF No. 9); (with Compl., 19 2:20-cv-00150-JAD-EJY, Ex. 1 to Mot. Leave Proceed in forma pauperis, ECF No. 1-1). The 20 cases may involve similar questions of law because Plaintiff asserts claims arising under the 21 same constitutional amendments. (See id.). However, the Court declines to exercise its 22 discretion to consolidate the cases because the Court finds that consolidation would not aid in

23 the efficient and economical resolution of the disputes. The Court also does not find cause to 24 waive the filing fee, as Plaintiff has a pending Application for Leave to Proceed in forma 25 pauperis in the other case. (See IFP Application, 2:20-cv-00150-JAD-EJY, ECF No. 7). 1 Accordingly, 2 IT IS HEREBY ORDERED that the Motion for Default Judgment, (ECF No. 44), is 3 DENIED. 4 IT IS FURTHER ORDERED that the Motion to Consolidate Cases, (ECF No. 48), is 5 DENIED. 6 Dated this _3_0_ day of September, 2020. 7 8 9 ___________________________________ Gloria M. Navarro, District Judge 10 United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25