Free Order on Motion for Default Judgment - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Rodney Allen Kelley,

) ) Plaintiff, ) ) vs. ) ) Glenn F. Kelley, et al., ) ) Defendants. ) ______________________________)

CV 04-103-PHX-SRB (MS)

ORDER

Pending before the Court is Plaintiff's Motion for Default Judgment (Doc. # 40).
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pursuant to FED. R. CIV. P. 55(b)(1). Defendants Charlie and Edie Fletcher filed a
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response in opposition to Plaintiff's motion (Doc. # 43).
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Plaintiff's complaint alleges that Defendants Glenn Kelley, Charlie Fletcher, and
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Edie Fletcher conspired against Plaintiff to breach a fiduciary duty. Plaintiff argues, as
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a result, Defendants are jointly liable for unliquidated damages. Plaintiff's motion seeks
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a default judgment against Defendant Kelley in the amount of $100,000 as well as court
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costs. Defendants Charlie B. Fletcher and Edie Fletcher have appeared and filed an
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Answer to the Complaint.
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Plaintiff's motion will be denied without prejudice. FED. R. CIV. P. 55(b)(1)
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provides that a default judgment for a liquidated amount may be entered against a
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defaulting party upon request by plaintiff to the Clerk of the Court. Plaintiff's motion
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seeks a default judgment by the Court, not the Clerk, for an unliquidated amount.
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Accordingly, Plaintiff's motion must be considered pursuant to FED. R. CIV. P. 55(b)(2).
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As Defendants Charlie and Edie Fletcher argue, long-standing Supreme Court precedent has established that a court cannot enter a judgment "against one of several defendants upon a joint charge against all, where the case is still pending as to the others." Frow v. De La Vega, 82 U.S. 552 (1872). Since Frow, the Ninth Circuit has reaffirmed that principle, holding that it would be inconsistent to enter a default judgment against a single defendant when the merits of the dispute have not yet been adjudicated, because of the possibility of the remaining defendants prevailing on summary judgment. In re First T.D. & Inv., Inc., 253 F.3d 520, 532 (9th Cir. 2001). Because Plaintiff alleges that all Defendants would be jointly liable for damages if Plaintiff proves his claim against the Defendants, it would be premature to enter judgment against Defendant Kelley, and therefore his motion for default judgment will be denied without prejudice. The Court will, however, allow Plaintiff to file an affidavit for entry of default against Defendant Glenn Kelley pursuant to FED. R. CIV. P. 55(a) within 15 days of the filing of this Order for Defendant Glenn Kelley's failure to timely file his Answer in this case. If Plaintiff chooses to make such a request of the Clerk, Defendant Glenn Kelley will have 15 days from the date the affidavit is filed to submit his motion to set aside the entry of default pursuant to FED. R. CIV. P. 55(c). Such motion must include an explanation showing "good cause" as to why he did not comply with this Court's October 27, 2005 Order instructing Defendant Glenn Kelley to file his Answer no later than December 2, 2005 (Doc. # 37). In accordance with the foregoing, IT IS ORDERED THAT Plaintiff's Motion for Default Judgment (Doc. # 40) is DENIED without prejudice. IT IS FURTHER ORDERED THAT Plaintiff, if he so chooses, has 15 days from the date of filing of this Order to file an affidavit for entry of default against Defendant Glenn Kelley pursuant to FED. R. CIV. P. 55(a) for his failure to timely file his Answer in this case.
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IT IS FURTHER ORDERED THAT if Plaintiff files a request of the Clerk for entry of default, Defendant Glenn Kelley has 15 days from the date the affidavit is filed to move to set aside the entry of default pursuant to FED. R. CIV. P. 55(a).

DATED this 7th day of February, 2006.

Case 2:04-cv-00103-SRB-ECV

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Filed 02/08/2006

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