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Pines v. Zions First National Bank

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 4, 2010

MICHAEL T. PINES, PLAINTIFF,
v.
ZIONS FIRST NATIONAL BANK; FENDERS RECOVERY SERVICE, DEFENDANTS.

The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER DENYING MOTION TO SET ASIDE ENTRY OF DEFAULT AS MOOT; DENYING MOTION FOR ENTRY OF DEFAULT JUDGMENT AS MOOT; DENYING REQUEST FOR ATTORNEY'S FEES

Defendant CENTN Corp, d/b/a Fenders Recovery Service and erroneously sued as Fenders Recovery Service, moves to set aside Plaintiff Michael Pines' request for entry of default judgment by court filed on January 14, 2010. Plaintiff moves for entry of default judgment against CENTN. Michael Pines does not object to setting aside default "as long as attorney's fees and costs incurred are paid." (Oppo at p. 2:8-9). Pursuant to Local Rule 7.1(d)(1), the court finds this matter appropriate for decision without oral argument.

As a threshold matter, the court notes the unique procedural posture of the present motion. CENTN moves to set aside a default that has never been entered; and Plaintiff moves for entry of default judgment without having moved for entry of default. See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). The closest that Plaintiff comes to moving for entry of default is his motion for default judgment. (Docket No. 7). However, notably absent from Plaintiff's motion for default judgment is a request for entry of default.

As default has neither been obtained nor requested, the court denies both pending motions as moot. The court also concludes that there is no basis for an award of attorney's fees.

In sum, the motion to set aside default is denied as moot, (Docket No. 12), the motion for entry of default judgment is denied as moot, (Docket No. 7), and the court denies Plaintiff's request for attorney's fees. CENTN is instructed to file a response to the complaint within 10 days of entry of this order.

IT IS SO ORDERED.

20100304

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