United States District Court, S.D. California
CLAUDINE OSGOOD, an individual, and ANTON EWING, an individual, Plaintiff,
MAIN STREAT MARKETING, LLC, a Utah limited liability company; JERROD ROBKER, an individual aka Jerrod McAllister; Does 1-100, ABC Corporations 1-100, XYZ, LLC's 1-100, et al., Defendants.
ORDER GRANTING PLAINTIFF EWING'S MOTION TO STRIKE
DEFENDANTS' ANSWER AND GRANTING PLAINTIFFS EWING AND
OSGOOD'S MOTION FOR ENTRY OF DEFAULT [DKT. NOS.
GONZALO P. CURIEL United States District Judge.
the Court is Plaintiff Anton Ewing's motion to strike
Defendant's Answer. (Dkt. No. 64-3.) Plaintiffs Ewing and
Osgood also filed a motion for default, or in the
alternative, motion for summary judgment. (Dkt. No. 64.) No
opposition has been filed. On July 12, 2017, Plaintiff Ewing
filed a declaration stating that Defendants have failed to
file an opposition. (Dkt. No. 66.) Based on the reasoning
below, the Court GRANTS Plaintiff Ewing's motion to
strike Defendant's answer and GRANTS Plaintiffs Ewing and
Osgood's motion for entry of default.
September 26, 2016, the case was removed from state court.
(Dkt. No. 1.) On October 4, 2016, Plaintiffs Anton Ewing and
Claudine Osgood, proceeding pro se, filed a first
amended complaint alleging three causes of action for
violations under the California Invasion of Privacy Act
(“CIPA”) pursuant to California Penal Code
section 630 et. seq.; the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), pursuant to
18 U.S.C. §§ 1962(c), and (d)); and the Telephone
Consumer Protection Act (“TCPA”) pursuant to 47
U.S.C. § 227. (Dkt. No. 11, FAC). After the Court denied
Plaintiff Ewing's motion to remand and granted in part
and denied in part Defendants' motion to dismiss and
motion to strike, Plaintiffs filed a second amended complaint
on January 17, 2017 against Defendants Main Streat Marketing,
LLC and Jerrod Robker aka Jerrod McAllister
(“McAllister”). (Dkt. No. 36.) An answer was
filed by both Defendants on January 31, 2017. (Dkt. No. 37.)
On March 27, 2017, the Court granted defense counsel's
motion to withdraw as counsel. (Dkt. No. 51.) In its order,
the Court directed Main Streat Marketing, LLC to obtain
substitute counsel within thirty days and have counsel file a
notice of appearance. (Id.) The Court also directed
Defendant McAllister to notify the Court of his current
mailing address. (Id.) Four months have passed and
both Defendants have failed to comply. The Court noted that
Main Streat Marketing, LLC may be subject to default
proceedings if it failed to obtain new counsel. (Id.
Ewing now moves to strike both Defendants' answer and
seeks and entry of default. Both Plaintiffs also filed a
motion for entry of default, or in the alternative, a motion
for summary judgment. Defendants have not filed an
Motion to Strike Answer
moves to strike the Answer of Defendants since both have
failed to defend the action and failed to comply with Court
orders and seeks an entry of default pursuant to Federal Rule
of Civil Procedure (“Rule”) 55(a).
default judgment is a two step procedure. Rule 55 provides
that “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise
defend . . . the clerk must enter the party's
default.” Fed.R.Civ.P. 55(a). Second, after default is
properly entered, a party seeking relief other than a sum
certain must apply to the Court for a default judgment.
Defendants filed an Answer, the Court cannot enter default
until the Answer is stricken. An answer may be stricken if
defendants fail to defend themselves. See Microsoft Corp.
v. Marturano, No. 06cv1747 OWW GSA, 2009 WL 1530040, at
*2, 6 (E.D. Cal. May 27, 2009) (striking answer against
defendant who persistently failed to participate in the
action); Galtieri -Carlson v. Victoria M. Morton
Enters., 08cv1777 FCD-KJN-PS, 2010 WL 3386473, at *3
(E.D. Cal. 2010). In addition, when a corporation fails to
retain counsel to represent it in an action, its answer may
be stricken and a default judgment entered against it.
Employee Painters' Trust v. Ethan Enters., Inc.,
480 F.3d 993 (9th Cir. 2007). Procedurally, courts have
stricken the answers of corporate defendants who have failed
to defend themselves, directed entry of default, and then
allowed the plaintiff to move for default judgment. See
Rojas v. Hawgs Seafood Bar, Inc., No. C08-03819 JF
(PVT), 2009 WL 1255538, at *1 (N.D. Cal. May 5, 2009)
(“When a corporation fails to retain counsel to
represent it in an action, its answer may be stricken and a
default judgment entered against it.”); Oracle
America, Inc. v. Serv. Key, LLC, No. C12-790SBA, 2013 WL
1195620, at *2-3 (N.D. Cal. Mar. 22, 2013) (ordering that if
substitute counsel is not found, the court will strike answer
and direct entry of default, and then plaintiff may file a
motion for default judgment).
Main Streat Marketing, LLC failed to retain counsel as
directed by the Court. Furthermore, Jerrod McAllister has
failed to comply with the Court's direction to notify the
Court of its address, has failed to file an opposition to
Ewing's motion for default judgment; motion for leave to
file an amended complaint and motion for summary judgment;
and failed to file an opposition to the instant motion.
McAllister has continuously failed to defend this action and
it does not appear that he will be doing so. Ewing notes that
Defendants are also defendants in another TCPA case in this
district, Melingonis v. Main Streat Marketing, LLC &
Jerrod Robker, 16cv2292-MMA (JLB). In that case, entry
of default was entered on July 17, 2017 since no answer had
been filed in the case. (Id, Dkt. No. 15.)
because Defendants have failed to defend themselves in this
action, the Court GRANTS Plaintiff Ewing's motion to
strike the Answer of Main Streat Marketing, LLC and
and Osgood also move for entry of default as to both
Defendants. Because Defendants' answer has been stricken,
the Court GRANTS Ewing and Osgood's motion for default
pursuant to Rule 55(a).
on the above, the Court GRANTS Plaintiff Ewing's motion
to strike Defendants' Answer and GRANTS Plaintiffs Ewing
and Osgood's motion for entry of default pursuant to Rule
55(a). The Court DIRECTS the Clerk of Court to enter default
as to Defendants Main Streat Marketing, ...