Free Order on Motion for Hearing - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Seahawk Software Development, L.L.C., et al., David H. Busch, Jr., Plaintiff, ) ) ) ) ) ) ) ) ) ) ) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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

Under the two-step process for obtaining a default judgment, the plaintiff must first obtain an entry of default from the Clerk of the Court pursuant to Fed.R.Civ.P. 55(a), which the plaintiff has done, and then the plaintiff must move the Court for entry of default judgment pursuant to Fed.R.Civ.P. 55(b), which the plaintiff has not done. Rather than filing a motion for default judgment, the plaintiff has instead filed a onesentence Motion for Hearing on Judgment Damages and Injunctive Relief (doc. #19). The Court finds that the motion should be denied as premature. Before the Court can proceed further in this action, the plaintiff must first file a proper motion seeking default judgment, which motion must be accompanied by the required memorandum of points and authorities. The memorandum shall set forth (1) the reasons why the Court should, in the exercise of its discretion, enter a default judgment in favor of the plaintiff, see Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.

Case 2:04-cv-00425-PGR

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1986)1, (2) whether the plaintiff is seeking an award of actual damages and profits pursuant to 17 U.S.C. § 504(b) or an award of statutory damages pursuant to 17 U.S.C. § 504(c), (3) the amount of such damages being sought, (4) the factual and legal bases underlying the amount of damages requested, (5) the factual and legal bases underlying the plaintiff's request for injunctive relief, (6) the reasons why the plaintiff believes an evidentiary hearing is necessary, (7) the number of witnesses the plaintiff would present at an evidentiary hearing, and (8) the length of time the plaintiff reasonably believes an evidentiary hearing would take. Once the plaintiff has filed his motion and memorandum, the Court will make a determination as to whether it can decide the motion based on the plaintiff's written submissions or will need to schedule a hearing on the matter. Therefore, IT IS ORDERED that the plaintiff's Motion for Hearing on Judgment Damages and Injunctive Relief (doc. #19) is denied as premature. IT IS FURTHER ORDERED that the plaintiff shall file a motion for default judgment in accordance with this order no later than November 30, 2005.

DATED this 3rd day of November, 2005.

1

In Eitel, the Ninth Circuit stated that the

[f]actors which may be considered by courts in exercising discretion as to the entry of a default judgment include: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.

Case 2:04-cv-00425-PGR

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