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Nicholas A. Horowitz v. Bishop

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 2, 2011

NICHOLAS A. HOROWITZ,
PLAINTIFF,
v.
BISHOP, WHITE, MARSHALL & WEIBEL, P.S., ET AL., DEFENDANT.

The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER RE REQUEST FOR ENTRY OF DEFAULT

Plaintiff requests an entry of default against Defendant. Because "'[w]henever it is reasonably possible, cases should be decided upon their merits[,] . . . any doubts as to the propriety of a default are usually resolved against the party seeking a default judgment." Vongrabe v. Sprint PCS, 312 F. Supp. 2d 1313, 1318-1319 (S.D. Cal. 2004) (quoting Patapoff v. Vollstedt's, Inc., 267 F.2d 863, 865 (9th Cir. 1959)).

Fed. R. Civ. P. 55(a) instructs the clerk to enter default only when a party "has failed to plead or otherwise defend" an action. "Acts that show an intent to defend have frequently prevented a default even though not connected to any particular rule." Notes of Advisory Committee on 2007 Amendments.

Here, Defendant is actively defending the case. Defendant filed a motion to dismiss a few hours before the instant request for notice of entry of default. Because Defendant has filed a responsive pleading and has appeared in this case, Plaintiff's request for an entry of default is DENIED.

IT IS SO ORDERED.

20110602

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