UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
May 16, 2013
JELLYBEAN ENTERTAINMENT, INC., DBA MAGICTV BOX,
USNILE LLC, ET AL.,
The opinion of the court was delivered by: Irma E. GONZALEZUnited States District Judge
MOTION TO DISMISS * DENYING DEFENDANTS' WITHOUT PREJUDICE; AND [Doc. No. 15] * DENYING DEFENDANTS' MOTION TO STAY; AND [Doc. No. 27]
Before the Court are Defendants' motion to dismiss and motion for stay of hearing on Plaintiff's motion for preliminary injunction. For the following reasons, both motions are DENIED.
On January 17, 2013, Plaintiff filed a complaint alleging copyright infringement and related claims arising from Defendants' purported broadcasting and distribution of Arabic language television channels for which Plaintiff owns exclusive broadcast and distribution rights. [Doc. No. 1.] On March 22, 2013, Plaintiff filed a motion for a preliminary injunction. [Doc. No. 4.] On April 8, 2013, as Defendants had failed to answer or otherwise respond to the complaint, the Court entered default. [Doc. No. 12.]
On April 18, 2013, Defendants filed a motion to set aside default and a motion to dismiss. [Doc. Nos. 14, 15.] On May 13, 2013, the Court took Plaintiff's motion for preliminary injunction under submission and vacated the hearing thereon. [Doc. No. 20.] On May 16, 2013, Defendants filed a motion to stay of hearing on preliminary injunction without obtaining a hearing date from chambers or properly moving ex parte. [Doc. No. 27.]
I. Defendants' Motion to Dismiss
"The Clerk of Court's entry of default cuts off a defendant's right to appear in an action." Transamerica Life Ins. Co. v. Shubin, 2012 WL 5364645, at *2 (E.D. Cal. Oct. 31, 2012)(internal quotation omitted). "A defendant's remedy if a defendant wants to set aside default and defend an action . . . is for the defendant to file a motion to set aside entry of default pursuant to Rule 55(c) of the Federal Rules of Civil Procedure." Transamerica Life, 2012 WL 5364645, at *2. Accordingly, "a party in default is generally precluded from participating in the case until the entry of default has been set aside." Joe Hand Productions, Inc. v. Estrada, 2011 WL 1232606, at *1 n.1 (E.D. Cal. March 31, 2011). Here, as it was filed after default, [see Doc. Nos. 12, 15], Defendants' motion to dismiss is precluded and thus DENIED WITHOUT PREJUDICE.
II. Defendants' Motion For Stay
Defendants move to stay the hearing on Plaintiff's motion for preliminary injunction "[p]ursuant to Fed. R. Civ. P. 62(b) until such time as the Court has issued its ruling on the Defendants' Motion to Dismiss." [Doc. No. 27 at 1.] The Court's ruling supra on Defendants' motion to dismiss renders moot Defendants' motion to stay. Moreover, Rule 62(b) pertains only to post-judgment motions and no judgment has been entered in this case. See Fed. R. Civ. P. 62(b). Accordingly, Defendants' motion to stay is DENIED.
IT IS SO ORDERED.
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