(PS) Smith v. Brewer

Opinion

DEAN T. SMITH, No. 2:19-cv-1918 TLN DB Plaintiff, v. ORDER DENNIS BREWER, an individual domiciled in New Jersey; WINNETT PERICO, INC., a Colorado corporation, d.b.a. WINNETTORGANICS; WINNETTORGANICS, a business entity of unknown type; WINNETTORGANICS CATTLE COMPANY, INC., a Colorado corporation; WINNETT CATTLE COMPANY, INC. a Colorado corporation,

Defendants. On May 8, 2019, plaintiff filed a motion for default judgment. (ECF No. 12.) Plaintiff’s motion is noticed for hearing before the undersigned on June 12, 2020, pursuant to Local Rule 302(c)(19). Plaintiff’s motion notes that service of the motion on the defaulting defendants is not required pursuant to the Federal Rules of Civil Procedure and the Local Rules. (Pl.’s MDJ (ECF No. 12) at 4.) And the motion for default judgment does not include proof of service. It is true that service of a motion for default judgement on a defaulting party is not required. See Fed. R. Civ. P. 55(b)(2) (requiring that written notice of an application for default judgment be served upon the party against whom judgment is sought only if that party “has wOAOe 2.4 VV VEY LOU PRINS MVVUTEOCTI LO POO Ore ove

appeared in the action”); Local Rule 135(d) (excusing parties from serving documents submitted to the court upon “parties held in default for failure to appear” unless a document asserts new or additional claims for relief against the defaulting parties). However, it is also true that a defendant’s “appearance need not necessarily be a formal one, Le., one involving a submission or presentation to the court. In limited situations, informal contacts between the parties have sufficed when the party in default has thereby demonstrated a clear purpose to defend the suit.” Wilson v. Moore & Associates, Inc., 564 F.2d 366, 369 (9th Cir. 1977). Accordingly, out of an abundance of caution, it is the undersigned’s practice to request that a plaintiff seeking default judgment serve all defendants with notice of a motion for default judgment. Accordingly, IT IS HEREBY ORDERED that: 1. The June 12, 2020 hearing of plaintiff's motion for default judgment (ECF No. 12) is continued to July 31, 2020; 2. On or before July 3, 2020, plaintiff shall serve a copy of the motion for default judgment, and a copy of this order, on each defendant; and 3. On or before July 17, 2020, plaintiff shall file proof of such service. Dated: June 8, 2020

UNITED STATES MAGISTRATE JUDGE □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□