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S.A. v. Exeter Union School District

July 7, 2009

S.A., A MINOR BY AND THROUGH HIS PARENTS, L.A. AND M.A., PLAINTIFFS,
v.
EXETER UNION SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER VACATING HEARING ON APPLICATION FOR DEFAULT JUDGMENT

ORDER DIRECTING COUNSEL TO CURE DEFICIENCIES IN APPLICATION

(Doc. 11)

On June 24, 2009, Plaintiffs filed an Application for Default Judgment by Court. (Doc. 11.) The matter is now pending before the Court, having been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b).

PROCEDURAL BACKGROUND

On May 11, 2009, Plaintiff filed a complaint against Exeter Union School District. (Doc. 1.) On that same date, this Court issued a summons as to Exeter Union School District. (Doc. 5.) On June 12, 2009, Plaintiff's counsel filed a return of service regarding service of that summons, indicating Defendant had been served on May 21, 2009, making an answer due no later than June 12, 2009. (Doc. 8.)

On June 16, 2009, Plaintiff filed a Request for Entry of Default. (Doc. 9.) On June 17, 2009, the Clerk entered default as to Defendant Exeter Union School District. (Doc. 10.)

Thereafter, Plaintiffs filed the instant application for default judgment.

DISCUSSION

Federal Rule of Civil Procedure 55(b)(2) provides:

(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States.

"Upon default, the well pleaded allegations of the complaint relating to liability are taken as true." Dundee Cement Co. v. Highway Pipe and Concrete Products, 722 F.2d 1319, 1323 (7th Cir. 1983); Televideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). Thus, "[a]t the time of entry of default, the facts alleged by the plaintiff in the complaint are deemed admitted." 10 J. Moore, Moore's Federal Practice § 55.11 (3d ed. 2000).

A. Service of Process

Under Federal Rule of Civil Procedure 4(j)(2), a plaintiff may serve a "state, a municipal corporation, or any other ...


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