Philadelphia Indemnity Ins. Co. v. Wilson ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PHILADELPHIA INDEMNITY No. 2:20-cv-1419 TLN DB INSURANCE COMPANY, 12 13 Plaintiff, ORDER 14 v. 15 ROGER WALTER WILSON; PHILIP WIEGMAN; LAKESHORE PACIFIC 16 ENTERPRISES, INC.; LAKESHORE PACIFIC NEVADA, INC.; DANIELLE 17 ALVES; KIMBERLY GRAY; MISTY POIESZ, 18 19 Defendants. 20 21 On July 29, 2021, plaintiff filed a motion for default judgment and noticed the motion for 22 hearing before the undersigned on August 27, 2021, pursuant to Local Rule 302(c)(19). (ECF 23 No. 29.) It does not appear, however, that plaintiff filed proof of service of notice of the motion 24 on the defendants. It is true that service of a motion for default judgement on a defaulting party is 25 not required. See Fed. R. Civ. P. 55(b)(2) (requiring that written notice of an application for 26 default judgment be served upon the party against whom judgment is sought only if that party 27 “has appeared in the action”); Local Rule 135(d) (excusing parties from serving documents 28 //// 1 submitted to the court upon “parties held in default for failure to appear” unless a document 2 asserts new or additional claims for relief against the defaulting parties). 3 However, it is also true that a defendant’s “appearance need not necessarily be a formal 4 one, i.e., one involving a submission or presentation to the court. In limited situations, informal 5 contacts between the parties have sufficed when the party in default has thereby demonstrated a 6 clear purpose to defend the suit.” Wilson v. Moore & Associates, Inc., 564 F.2d 366, 369 (9th 7 Cir. 1977). Therefore, out of an abundance of caution, it is the undersigned’s practice to request 8 that a plaintiff seeking default judgment serve all defendants with notice of the motion for default 9 judgment. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. The August 27, 2021 hearing of plaintiff’s motion for default judgment (ECF No. 29) 12 is continued to October 8, 2021; 13 2. On or before September 3, 2021, plaintiff shall serve a copy of the motion for default 14 judgment, and a copy of this order, on each defendant; and 15 3. On or before October 1, 2021, plaintiff shall file proof of such service. 16 DATED: August 23, 2021 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 DLB:6 27 DB/orders/orders.pro se/philadelphia1419.serve.mdj.ord 28