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Kizer v. PTP, Inc.

United States District Court, D. Nevada

April 18, 2019

LEON MARK KIZER, Plaintiff,
v.
PTP, INC. et al., Defendants.

          ORDER

          ROBERT C. JONES UNITED STATES DISTRICT JUDGE

         Before this Court is the Plaintiff's Motion for Default Judgment (ECF No. 456) to void Mr. Francis Brun's and Ms. Aileen Brun's (the Defendants') leasehold interest in Public Allotment No. CC-234 (the Property). The Plaintiff's served the Defendants on May 25, 2015 (ECF Nos. 222, 223) to which the Defendants have not responded. On January 3, 2017, the Clerk of the Court entered Default against the Defendants (ECF No. 428). Presently, the Plaintiff moves this Court to enter Default Judgment in his favor under Federal Rule of Civil Procedure 55(b)(2). This Court grants the Plaintiff's motion.

         LEGAL STANDARDS

         Under Federal Rule of Civil Procedure 55, there is a two-step process in order to acquire a default judgment. First, the Plaintiff must have the clerk of the court enter default. Second, the Plaintiff must petition the Court for default judgment, when the nonmoving party has appeared or the default judgment request is not for a certain sum of money. In the petition, the Plaintiff must set forth the following information:

(1) when and against which party, the default was entered;
(2) the identification of the pleading to which default was entered;
(3) whether the defaulting party is an infant or incompetent person, and if so, whether that person is adequately represented;
(4) that notice of the application has been served on the defaulting party, if [the nonmoving party has either formally appeared or shown a clear purpose to defend the suit].

PepsiCo, Inc. v. California Sec. Cans, 238 F.Supp.2d 1172, 1174 (C.D. Cal. 2002).

         When the Plaintiff meets the five requirements, “[t]he decision to enter a default judgment is a matter left to the sound discretion of the court.” Granite State Ins. Co. v. CME Prof'l Servs. LLC, No. CV-18-02488-PHX-JGZ, 2019 WL 399923, at *2 (D. Ariz. Jan. 31, 2019) (citing Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)). The Ninth Circuit has provided the district courts with a framework with which to determine the appropriateness of granting default judgment in Eitel v. McCool. 782 F.2d 1470 (9th Cir. 1986). The Court of Appeals has listed seven factors to consider:

(1) the possibility of prejudice to the plaintiff;
(2) the merits of plaintiff's substantive claim;
(3) the sufficiency of the complaint;
(4) the sum of money at stake in the ...

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