United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
matter came before the undersigned on November 17, 2017,
pursuant to Local Rule 302(c)(19), for hearing of
plaintiff's motion to vacate the Clerk's entry of
default judgment and for entry default judgment by the court.
(ECF No. 28.) On behalf of the plaintiff, attorney Jeffrey
Brown appeared in person and attorney William Bay appeared
telephonically. Defendant Billy Leon Marker, Jr., appeared in
person on his own behalf. No. appearance was made on behalf
of Marker Oil Company, Inc. At that time oral argument was
heard and the motion was taken under submission.
considered all written materials submitted with respect to
the motion, and after hearing oral argument, the undersigned
recommends that plaintiff's motion be granted in part and
denied in part as explained below.
commenced this action on August 23, 2017, by filing a
complaint and paying the required filing fee. (ECF No. 1.)
Therein, plaintiff alleges that on June 21, 2017, plaintiff
and defendant Marker Oil Company, Inc., (“Marker
Oil”), entered into an Inventory Security Agreement
(the “Security Agreement”), whereby plaintiff
agreed to provide financing for Marker Oil's inventory of
RVs, ATVs, and watercraft. (Compl. (ECF No. 1) at
That same day plaintiff and defendant Billy Leon Marker, Jr.,
(“Billy Marker”), entered into a Guaranty,
whereby defendant Billy Marker “unconditionally
guaranteed the prompt and punctual payment of all obligations
of” defendant Marker Oil to plaintiff. (Id. at
4.) Thereafter, defendants defaulted. (Id. at 4-7.)
Based on these allegations, the complaint alleges causes of
action for breach of contract, possession of collateral, and
injunctive relief. (Id. at 7-12.)
August 29, 2017, plaintiff filed proof of service. (ECF No.
13.) On September 1, 2017, the assigned District Judge
granted plaintiff's motion for a temporary restraining
order. (ECF No. 14.) On September 11, 2017, the assigned
District Judge issued a preliminary injunction and an order
for a writ of possession. (ECF Nos. 18 & 19.) On
September 19, 2017, plaintiff filed a request for entry of
default, and on September 20, 2017, the Clerk of the Court
entered defendants' default. (ECF Nos. 21 & 22.)
September 26, 2017, plaintiff filed a motion for default
judgment. (ECF No. 23.) The Clerk of the Court entered
default judgment on September 29, 2017. (ECF No. 25.) On
October 5, 2017, plaintiff filed the pending motion seeking
to vacate the Clerk's entry of default judgment and enter
default judgment by the court. (ECF No. 26.) As noted above,
at the November 17, 2017 hearing of plaintiff's motion,
defendant Billy Marker appeared in person on his own behalf.
(ECF No. 28.)
on November 27, 2017, the undersigned issued an order
directing the parties to file supplemental briefing. (ECF No.
29.) Plaintiff filed its supplemental brief on December 15,
2017. (ECF No. 30.) On January 4, 2018, attorney Thomas
Gifford appeared on behalf of both defendant Billy Marker and
defendant Marker Oil, and filed defendants' supplemental
brief. (ECF No. 32.) Plaintiff filed a response on January 5,
2018. (ECF No. 33.) Defendants filed a further response on
January 14, 2018. (ECF No. 34.) And plaintiff filed a
sur-reply on January 18, 2018. (ECF No. 35.)
Vacating the Clerk's Entry of Default Judgment
argues that the Clerk's entry of default judgment should
be set aside because the judgment did not address all of the
relief requested by plaintiff. (Pl.'s Mot. (ECF No. 26)
at 2-3.) In this regard, although the Clerk's entry of
default judgment awarded plaintiff $1, 071, 192.69 in
principal, the judgment failed to address plaintiff's
request for prejudgment interest, attorney's fees and
expenses, surety bond cost, injunctive relief, and the award
of inventory sought by plaintiff's motion for default
55(b) of the Federal Rules of Civil Procedure provides that
the “court . . . may set aside a final default judgment
under Rule 60(b).” Rule 60(b) provides that “the
court may relieve a party or its legal representative from a
final judgment, ” for reasons including mistake,
inadvertence, where the judgment is void, and any other
reason that justifies relief.
the Clerk's September 29, 2017 default judgment should be
vacated, as the Clerk may only enter default judgment
“for a sum certain or a sum that can be made certain by
computation.” Fed.R.Civ.P. 55(b)(1). As noted above,
plaintiff's motion for default judgment sought more than
monetary compensation. See GAG Enterprises, Inc. v.
Rayford, 312 F.R.D. 230, 234 (D. D.C. 2015) (“the
Clerk of the Court cannot enter a default judgment in this
case because the Clerk does not have discretion to award
attorneys' fees”); Western World Ins. Co., Inc.
v. Czech, 275 F.R.D. 59, 62 (D. Mass. 2011)
(“Because the Clerk erroneously entered the Default
Judgment which could only have been entered in this action by
the Court pursuant to Fed.R.Civ.P. 55(b)(2), the Court will
vacate and void the Default Judgment pursuant to Fed.R.Civ.P.
60(b).”); Northland Ins. Co. v. Cailu Title
Corp., 204 F.R.D. 327, 329 (W.D. Mich. 2000)
(“This is an action for declaratory relief; no sum
certain has been requested. Under the circumstances,
Northland's request that the Clerk enter a default
judgment in any form may not be granted.”); Combs
v. Coal & Mineral Management Services, Inc., 105
F.R.D. 472, 474 (D. D.C. 1984) (“The original complaint
in this action, seeking injunctive and declaratory as well as
monetary relief, was clearly outside the scope of the
clerk's Rule 55 authority.”).
plaintiff's motion to vacate the September 29, 2017
Clerk's entry of ...