Free Request for Entry of Clerks Default - District Court of California - California

Case 3:08-cv-00860-H-POR

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Filed 06/17/2008

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BRYAN W. PEASE (SB# 239139) 302 Washington St. #404 San Diego, CA 92103 Telephone: (619) 723-0369 Facsimile: (619) 923-1001 email: [email protected] Attorney for Plaintiff

5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HIERRO'S MARKET and EDUARDO HIERRO, Defendants. v. SAMMY'S PRODUCE, INC., Plaintiff, ) Civil Action, No.: 08 CV 0860 H POR ) ) REQUEST FOR ENTRY OF DEFAULT ) ) ) ) ) ) ) ) ) )

Plaintiff hereby respectfully requests an entry of default against defendants HIERRO'S MARKET & CARNICERIA, INC. and EDUARDO HIERRO. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend and that fact is made to appear by affidavit or otherwise, the clerk must enter the party's default. See Fed. R. Civ. P. 55(a). Rule 55 does not direct the manner in which default is to be entered in the court records. It appears that the fact of the default must be noted by the clerk on the court docket for use when the moving party subsequently seeks a default judgment. Cf. Fed. R. Civ. P. 77(d); see also Connecticut Nat'l Mortg. Co. v. Brandstatter, 897 F.2d 883, 884-885 (7th Cir. 1990) (although entry of default may properly be made on docket, party's default is not defeated merely because default is not recorded on docket).

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Rule 55 does not require that a defending party be notified of the opposition party's application for entry of default. Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d 508, 512 (9th Cir. 1986) (rule contains no notice requirement); see Fed. R. Civ. P. 55(a). In the present case, the process server hand delivered the summons and complaint to a store manager at HIERRO'S MARKET & CARNICERIA, INC. on May 16, 2008, and mailed the documents to the corporation on May 17, 2008. See Proof of Service, attached as Exhibit A. The process server personally served EDUARDO HIERRO on May 18, 2008. Id. More than 20 days have elapsed since both parties were served, and both parties have failed to answer the complaint. Plaintiffs therefore respectfully request that the clerk enter a default against both defendants.

Dated: June 17, 2008

By: /s/ Bryan W. Pease___________________ Bryan W. Pease Attorney for Plaintiff

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Exhibit A

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