Wells v. Nasf Van Lines, Inc. et al

Northern District of California, cand-4:2015-cv-02226

ORDER by Judge Kandis A. Westmore denying {{61}} Motion for Default Judgment. (kawlc2, COURT STAFF) (Additional attachment(s) added on 1/22/2018: # {{1}} Certificate/Proof of Service)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STEPHINE M. WELLS, Case No. 15-cv-02226-KAW 8 Plaintiff, ORDER DENYING MOTION FOR 9 v. DEFAULT JUDGMENT 10 NASF VAN LINES, INC., et al., Re: Dkt. No. 61 11 Defendants. 12 Northern District of California United States District Court 13 On January 9, 2018, Plaintiff Stephine M. Wells filed the instant motion for default 14 judgment against Defendant NASF Van Lines, Inc. The Court DENIES Plaintiff's motion. 15 As an initial matter, Plaintiff has yet to obtain entry of default from the Clerk of the Court. 16 Entry of default is required before a motion for summary judgment may be filed. See Fed. R. Civ. 17 P. 55(a). 18 Moreover, Plaintiff's motion is based on Defendant NASF Van Lines, Inc.'s failure to file 19 a substitution of attorney. In the Court's November 3, 2017 order granting Attorney Jeffrey 20 Nadel's motion to withdraw as Defendant NASF Van Lines, Inc.'s counsel, the Court gave 21 Defendant NASF Van Lines, Inc. 45 days to find substitute counsel, and warned that "[i]f 22 Defendant does not file a substitution of counsel within 45 days, then its answer will be deemed 23 stricken and Plaintiff may move to have default entered against it." (Dkt. No. 58 at 3-4.) The 24 Court also ordered Attorney Nadel to serve the withdrawal order on Defendant NASF Van Lines, 25 Inc. and to file a proof of service of such service. It is not clear to the Court, however, that 26 Attorney Nadel has served the November 3, 2017 order on Defendant NASF Van Lines, Inc., or 27 that Defendant NASF Van Lines, Inc. is aware of the 45-day deadline, as Attorney Nadel did not 28 file a proof of service and has failed to respond to the Court's January 5, 2018 order to show cause. 1 (See Dkt. No. 60.) 2 Once a proof of service is filed, Defendant NASF Van Lines, Inc. shall have 45 days from 3 the date of service to obtain counsel and file a substitution of counsel. Should Defendant NASF 4 Van Lines, Inc. fail to do so, the Court will strike Defendant NASF Van Lines, Inc.'s answer and 5 Plaintiff may then move to have the Clerk of the Court enter default against it. 6 For these reasons, the Court DENIES Plaintiff's motion for default judgment. Attorney 7 Nadel is directed to serve this order on Defendant NASF Van Lines, Inc., and to file a proof of 8 service of such service. 1 Failure to do so may result in the Court issuing an order to show cause 9 as to why Attorney Nadel should not be sanctioned for failing to comply with the Court's orders. 10 IT IS SO ORDERED. 11 Dated: January 22, 2018 __________________________________ 12 KANDIS A. WESTMORE Northern District of California United States District Court 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 1 Civil Local Rule 11-5(b) further states: "When withdrawal by an attorney from an action is not 26 accompanied by simultaneous appearance of substitute counsel or agreement of the party to appear pro se, leave to withdraw may be subject to the condition that papers may continue to be served on 27 counsel for forwarding purposes, unless and until the client appears by other counsel or pro se." The Court imposed this condition in its November 3, 2017 order permitting Attorney Nadel to 28 withdraw, and thus Attorney Nadel is obligated to forward all filings in this case to Defendant NASF Van Lines, Inc. (See Dkt. No. 58 at 3.) 2