FINDINGS & RECOMMENDATIONS
This matter came before the court on July 29, 2011 for hearing of plaintiff's motion for default judgment (Doc. No. 13) and defendant's counter-motion to set aside default (Doc. No. 16).*fn1 Curtis Malloy, who is not an attorney of record in this case, appeared on behalf of Aldon Louis Bolanos, Esq. for plaintiff. James T. Anwyl, Esq. appeared for defendant.
Upon consideration of the briefs on file, oral argument at the hearing, and the entire record, the undersigned recommends that defendant's motion to set aside default be granted and plaintiff's motion for default judgment be denied.
Plaintiff, proceeding with counsel, filed this employment discrimination action on February 9, 2011. (Doc. No. 1) On that same date, summons issued and an initial scheduling conference was set for May 2, 2011. On April 28, 2011, almost three months after issuance of summons and on the eve of the initial scheduling conference, the record did not reflect any appearance by defendant or any evidence that service of process had been effected by plaintiff. Accordingly, the district judge issued an order resetting the initial scheduling conference for June 20, 2011, "to allow defendant(s) time to answer." (Doc. No. 5.) Thereafter, on May 9, 2011, plaintiff filed a return of service showing that documents for service were provided to a process server on April 28, 2011, and service of process was effected on May 3, 2011 by delivery to a person designated to accept service of process on defendant school district. (Doc. No. 6.)
On June 15, 2011, on the eve of the rescheduled scheduling conference, the record did not reflect any appearance by defendant or any further action by plaintiff after filing a return of service executed. Accordingly, the district judge issued an order resetting the scheduling conference for October 3, 2011 "to allow plaintiff's counsel time to move for default/default judgment against defendant." (Doc. No. 7.) On June 16, 2011, plaintiff filed a motion for entry of default. (Doc. No. 8.) The Clerk entered defendant's default the next day. (Doc. No. 9.) On June 23, 2011, plaintiff moved for default judgment but twice failed to notice the motion properly. (Doc. Nos. 10 & 11.) The motion for default judgment now pending before the court was filed on June 24, 2011. (Doc. No. 13.) Plaintiff's certificates of service indicate that the motion for entry of default by the clerk was served on defendant by mail on June 16, 2011, and the three motions for default judgment were served on defendant by mail on June 23 and June 24, 2011. (Doc. Nos. 8, 10, 11 & 13.)
On June 28, 2011, twelve days after plaintiff served the motion for entry of default, eleven days after the Clerk entered defendant's default, and five days after plaintiff served the first of three motions for default judgment, defendant filed a motion to set aside default. (Doc. No. 14.) Two days after filing the motion to set aside, on June 30, 2011, defendant filed its amended motion to set aside default, in compliance with the district judge's referral order, and noticed it for hearing on the same day as plaintiff's motion for default judgment. (Doc. Nos. 15 & 16.)
At the present time, the initial scheduling conference remains on the district judge's calendar for October 3, 2011, with the proviso that the conference will be vacated if a default judgment is entered prior to that date. (Doc. 7.)
Plaintiff alleges as follows in her verified complaint. She is an accredited schoolteacher formerly employed at McClatchy High School by defendant Sacramento County Unified School District. (Compl. ¶ 1.) On January 27, 2010, an incident occurred involving a student who was in plaintiff's class during the 10:30 a.m. period that day. (Id. ¶¶ 4-7.) On January 29, 2010, after being interrogated by the Sacramento Police Department, plaintiff was summarily placed on administrative leave. (Id. ¶ 9.) Plaintiff was subsequently placed on forty-five days probation, and on March 5, 2010 she was terminated from her position for "extremely unprofessional" conduct. (Id. ¶¶ 11-12.) During the disciplinary proceedings that ensued, plaintiff and a second teacher involved in the incident were represented by a law firm retained by the union. (Id. ¶ 16.) On the advice of the attorney who represented both plaintiff and the second teacher, plaintiff executed a release in favor of the school district despite her belief that she was being terminated improperly. (Id. ¶ 17.) Plaintiff contends that the release is null and void and is not binding on her because it was executed by reason of fraud and duress and undue influence. (Id.)
Plaintiff alleges wrongful termination (1) in violation of Title VII, (2) in violation of her employment contract, (3) in violation of the covenant of good faith and fair dealing implicit in all employment contracts, and (4) on the basis of race -- specifically, her Arab ancestry -- in violation of the Civil Rights Act, 42 U.S.C. § 1981. (Id. at 6-9.) Plaintiff seeks compensatory damages, tort damages, and punitive damages. (Id. at 9.)
Obtaining a default judgment in federal court is a two-step process. First, the party seeking such a judgment must obtain an entry of default. This step is governed by Federal Rule of ...