Ly v. Paragon Technology & Development Incorporated ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Cathy Ly, No. CV-18-02465-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Paragon Technology & Development Incorporated, et al., 13 Defendants. 14 15 Pending before the Court is Plaintiff’s application for entry of default. (Doc. 77.) 16 For the following reasons, the application will be denied without prejudice. 17 As background, this action was initiated in August 2018, when Defendants removed 18 it from state court. (Doc. 1.) In the ensuing 14 months, Defendants have vigorously 19 litigated the case. Among other things, they filed an answer to the complaint in September 20 2018 (Doc. 14), served discovery responses in October 2018 (Doc. 15), served additional 21 discovery responses in November 2018 (Doc. 21), participated in the Rule 16 scheduling 22 conference in November 2018 (Doc. 22), served additional discovery responses in 23 December 2018 (Doc. 24), briefed and argued a discovery dispute in December 2018 24 (Docs. 28, 30), and filed a motion to dismiss the second amended complaint (“SAC”) in 25 January 2019 (Doc. 39). In June 2019, the parties attended a mediation, but the mediation 26 did not result in settlement. (Doc. 49). Afterward, Defendants filed an opposition to 27 Plaintiff’s motion to amend the SAC to add a new co-defendant (Doc. 52) and filed an 28 opposition to Plaintiff’s motion to enforce the parties’ purported settlement agreement 1 (Doc. 59). 2 On September 12, 2019, the court held a hearing on Defendants’ motion to dismiss 3 the SAC, Plaintiff’s motion to amend the SAC, and Plaintiff’s motion to enforce the 4 settlement agreement. (Doc. 74.) Defendants participated in this hearing and presented 5 evidence. (Id.) The following day, the Court issued an order that granted, in part, 6 Defendants’ motion to dismiss the SAC and gave Plaintiff 14 days to file a third amended 7 complaint (“TAC”). (Doc. 73.) On September 27, 2019, Plaintiff accepted this invitation 8 and filed the TAC. (Doc. 76.) 9 In the pending application, Plaintiff seeks the entry of a default against Defendants 10 under Rule 55 of the Federal Rules of Civil Procedure. (Doc. 77.) In a nutshell, Plaintiff 11 contends that a default must be entered because Defendants were required to file an answer 12 to the TAC within 14 days of when it was served on them (i.e., by October 11, 2019) yet 13 failed to do so. (Id.) 14 The application will be denied without prejudice. “Although a clerk’s entry of 15 default can be ministerial pursuant to Fed. R. Civ. P. 55(a), the court may decline to enter 16 default when it is apparent that the default would be set aside on a motion.” Diamond v. 17 Cty. of Riverside, 2015 WL 11215850, *4 (C.D. Cal. 2015). Defendants have vigorously 18 litigated this action until now. Moreover, the Court notes that the application and 19 supporting declaration do not reflect that Plaintiff attempted to meet and confer with 20 Defendants before filing the application. Cole v. Asurion Corp., 2009 WL 10655707, *2 21 n.1 (C.D. Cal. 2009) (“The Court notes that while, strictly speaking, a defendant who fails 22 to respond timely to the complaint is not entitled to any further notice before entry of 23 default, professional courtesy dictates that a plaintiff warn such a defendant of its intention 24 to seek a default before doing so.”) (citation omitted). The Court will therefore afford 25 Defendants a few more days to respond to the TAC. 26 Accordingly, 27 IT IS ORDERED that Plaintiff’s application for entry of default (Doc. 77) is denied 28 without prejudice. 1 IT IS ORDERED that Defendants respond to the TAC by November 1, 2019. 2 Dated this 25th day of October, 2019. 3 4 _- 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-