The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff's motion for default judgment against defendants MFN Mortgage and Gregory Lynn Nichols, filed April 7, 2011, (dkt. # 40), was submitted after hearing on May 19, 2011.*fn1 Jonathon Stein appeared for plaintiff. Defendants made no appearance. After hearing oral argument and upon review of the motion and the supporting documents, the court issues the following findings and recommendations.
Plaintiff filed this action in state court, alleging misrepresentations in violation of the Real Estate Settlement Procedures Act ("RESPA") and eight state law claims in connection with the sale and mortgage of a home purchased by plaintiff that later went into foreclosure. The complaint alleged fraud, breach of contract, breach of implied covenant of good faith and fair dealing, violation of California's Rosenthal Act, negligence, violation of RESPA, breach of fiduciary duty, violations of California Bus. & Prof. Code § 17200 et seq., and wrongful foreclosure. On April 8, 2010, the action was removed to this court by defendants Deutsche Bank and Wells Fargo Bank, and defendant Nichols dba MFN Mortgage joined in the removal. (Dkt. # 4.) Subsequently, plaintiff filed an amended complaint on April 29 and May 3, 2010, (dkt. #s 15 and 17), which contained no federal claims and did not allege diversity. The district court granted the motion to dismiss brought by Deutsche Bank and Wells Fargo Bank. The only remaining defendants are MFN Mortgage and its principal, Gregory Nichols.*fn2 The amended motion for default judgment, filed on May 19, 2011, after the hearing, seeks judgment in the amount of $29,760.62, plus pre-judgment interest.
According to the record, the complaint was served, and defendant Nichols dba MFN Mortgage filed an answer in state court on March 24, 2010. (Dkt. # 1.) Defendant Nichols filed a joinder in the removal to this court. (Dkt. # 4.) Nichols was served by mail with the amended complaint on May 3, 2010.*fn3 (Dkt. # 17 at 29.) Nichols did not file a response to the amended complaint. Since Nichols dba MFN Mortgage has made an appearance in this case,*fn4 he was required to be served with notice of the application for default judgment seven days prior to the May 19, 2011 hearing. Fed. R. Civ. P. 55(b)(2). Nichols was not served with notice of the application. (Dkt. # 40.) Therefore, the application for default judgment should be denied. Plaintiff is seeking to win, not on the merits, but on procedural grounds. As such, plaintiff himself must not be procedurally deficient in his application.
In view of the foregoing findings, it is the recommendation of this court that plaintiff's application for entry of default judgment, filed April 7, 2011, as amended on May 19, 2011, be DENIED without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to this case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).