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Dillard v. Victoria M. Morton Enterprises

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 12, 2010

MARILYN DILLARD, ET AL., PLAINTIFFS,
v.
VICTORIA M. MORTON ENTERPRISES, INC., ET AL., DEFENDANTS.
RUTH GALTIERI-CARLSON, ET AL., PLAINTIFFS,
v.
VICTORIA M. MORTON ENTERPRISES, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently set for hearing on April 22, 2010 is plaintiffs' Application for Default Judgment By Court, which according to the court's docket was filed only in the matter of Dillard, et al. v. Victoria M. Morton Enterprises, Inc., et al., No. 2:08-cv-1339 FCD KJN PS (Dkt. No. 44.) The court's docket does not reflect that plaintiffs in the matter of Galtieri-Carlson, et al. v. Victoria M. Morton Enterprises, Inc., et al., No. 2:08-cv-1777 FCD KJN PS, separately filed an application for default judgment in that case.*fn1

As noted in the court's Related Case Order entered in both matters, the Related Case Order did not effectuate a consolidation of the two cases. (See Dillard, No. 2:08-cv-1339 FCD KJN PS, Dkt. No. 14; Galtieri-Carlson, No. 2:08-cv-1777 FCD KJN PS, Dkt. No. 7.) Accordingly, no application for default judgment is currently pending in the Galtieri-Carlson matter. However, plaintiffs in the Galtieri-Carlson matter apparently intended to move for default judgment in that matter through the Application for Default Judgment By Court filed only in the Dillard matter ("Dillard Application"). It appears from the caption of the Dillard Application, which contains case information for both cases, that the Galtieri-Carlson plaintiffs also intended to move for default judgment but errantly failed to file their motion in the correct matter. Because no prejudice would befall the remaining defendants in either action, the undersigned will deem the Dillard Application filed in the Galtieri-Carlson matter, and the April 22, 2010 hearing will remain on the court's calendar.

In anticipation of the April 22, 2010 hearing, the undersigned notes that certain entity defendants against which plaintiffs seek default judgment previously appeared through counsel in both the Dillard and Galtieri-Carlson matters. (See Dillard, No. 2:08-cv-1339 FCD KJN PS, Dkt. No. 22; Galtieri-Carlson, No. 2:08-cv-1777 FCD KJN PS, Dkt. No. 21.) As a result, plaintiffs in both actions are required to serve notice of their application for default judgment on those previously appearing parties within seven (7) days of the hearing. Fed. R. Civ. P. 55(b)(2).*fn2 Failure to do so may have adverse consequences for plaintiffs' default judgment to the extent it might be granted. See, e.g., Civic Ctr. Square, Inc. v. Ford (In re Roxford Foods), 12 F.3d 875, 879 (9th Cir. 1993) (noting that failure to provide notice when required is "a serious procedural irregularity" that usually justifies setting aside a default judgment or reversing a default judgment on appeal).

Accordingly, the undersigned HEREBY ORDERS that:

1. The Application for Default Judgment By Court shall be deemed filed in Galtieri-Carlson, No. 2:08-cv-1777 FCD KJN PS.

2. The hearing presently set for April 22, 2010 will remain on calendar.

3. The Clerk of Court is directed to enter this order in the following matters: Dillard, No. 2:08-cv-1339 FCD KJN PS, and Galtieri-Carlson, No. 2:08-cv-1777 FCD KJN PS.

4. Plaintiffs in both actions are required to serve notice of their application for default judgment on those previously appearing parties within seven (7) days of the April 22, 2010 hearing, and file a proof of service with the court.


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