Free Order on Motion for Default Judgment - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

David H. Busch, Jr., Plaintiff, vs. Seahawk Software Development, L.L.C., et al.,

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No. CV-04-0425-PHX-PGR ORDER and OPINION

The plaintiff, who is represented by attorney Paul E. Steen of the law firm of Golston Keister & Steen P.C., commenced this copyright infringement action on March 1, 2004. Pursuant to the plaintiff's (second) application, the Clerk of the Court entered default on August 2, 2005 against defendants Seahawk Software Development L.L.C. and Russell T. Bullock.1 The Court entered an order (doc. #20) on November 3, 2005 that denied the plaintiff's one-sentence Motion for Hearing on Judgment Damages and Injunctive Relief, filed on September 8, 2005, as premature and required the plaintiff to file a motion for default judgment, together with a memorandum of points and authorities, no later than November 30, 2005. The order specifically listed eight areas the Court wanted the plaintiff to discuss in his memorandum of points and authorities that the Court deemed relevant to the default judgment issue.

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Entry of default was not sought against the third defendant, Jane Doe Bullock, and there is nothing in the record indicating that Jane Doe Bullock has been served with process. The Court therefore presumes that there is no Jane Doe Bullock.

Case 2:04-cv-00425-PGR

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Filed 01/06/2006

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On November 17, 2005, the plaintiff filed a one-sentence Motion for Default Judgment that inexplicably was unaccompanied by any memorandum of points and authorities. On December 1, 2005, the Court entered a second order (doc. #22) that notified the plaintiff that his failure to file a memorandum of points and authorities violated the Court's order of November 3rd, as well as Fed.R.Civ.P. 7(b)(1) and LRCiv 7.2(b), advised the plaintiff that the Court could not proceed with his request for a default judgment until he filed his required memorandum of points and authorities, required the plaintiff to file his memorandum no later than December 19, 2005, and advised the plaintiff that his failure to comply with the Court's order could result in the imposition of an appropriate sanction, which could include the dismissal of this action pursuant to Fed.R.Civ.P. 41(b). A review of the record establishes that the plaintiff has to date failed, without any explanation, to comply with the Court's orders of November 3rd and December 1st. Having considered the Ninth Circuit's five-part test for determining whether dismissal pursuant to Rule 41(b) is an appropriate sanction for disobeying a court order, Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)2, the Court finds that this action should be dismissed without prejudice because the Court can only assume that the plaintiff's failure to obey the Court's orders was willful3, the plaintiff's failure to file the required memorandum of points and authorities impeded the resolution of this action and interfered with the management of the Court's docket given that the Court advised the plaintiff that it could not proceed with his request for a default judgment without the

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"A district court must weigh five factors in determining whether to dismiss a case for failure to comply with a court order: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases of their merits; and (5) the availability of less drastic sanctions." (Internal quotation marks omitted). Malone, 833 F.3d at 130.
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The Notice of Electronic Filing generated pursuant to the Court's CM/ECF system for each order shows that both of the Court's orders were sent to two different e-mail addresses at the plaintiff's counsel's law firm, one of which was for the plaintiff's counsel.

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memorandum, the plaintiff's failure to comply with the Court's order of December 1st came after the Court specifically warned the plaintiff of the possibility of dismissal if he failed to file the required memorandum, and the Court attempted to cure the plaintiff's failure to comply with the Court's order of November 3rd by sua sponte giving the plaintiff an extra 19 days in which to file his memorandum (for a total of 45 days). Therefore, IT IS ORDERED that the plaintiff's Motion for Default Judgment (doc.# 21) is denied. IT IS FURTHER ORDERED that this action is dismissed in its entirety without prejudice pursuant to Fed.R.Civ.P. 41(b). The Clerk of the Court shall enter judgment accordingly. DATED this 5th day of January, 2006.

Case 2:04-cv-00425-PGR

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