Herman Pearl Company v. Global Freight Services, LLC et al
Filing
36
ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/7/2011 ORDERING that cross claimant's 28 30 32 motions for default judgment are DENIED without prejudice. (Duong, D)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
10 HERMAN PEARL COMPANY, et al.,
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Plaintiff,
No. CIV S-11-0711 JAM CKD
vs.
13 GLOBAL FREIGHT SERVICES, LLC, et al.,
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Defendants.
ORDER
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Defendant and cross claimant D & P Enterprises, Inc. filed motions for default
17 judgment. In the cross complaint, plaintiff alleges claims for fraud, conversion and indemnity
18 arising out of the sale to cross claimant by cross defendants of allegedly stolen merchandise. The
19 motions for default judgment are defective in that they were not properly noticed for hearing, are
20 not accompanied by a memorandum of points and authorities in support of the motion, and the
21 affidavit relied on by cross claimant does not establish that cross claimant is entitled to the relief
22 requested. See, e.g., Atchison, T. & S. F. Ry. v. Lan Franco, 267 Cal. App. 2d 881 (1968) (right
23 to non-contractual implied indemnity rests upon equitable considerations). Here, no judgment has
24 been taken against cross claimant and the affidavit of Amy Johnson (dkt. no. 22-5) is insufficient
25 to support entry of default judgment against cross defendants.
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Accordingly, IT IS HEREBY ORDERED that cross claimant’s motions for default
2 judgment (dkt. no. 28, 30, 32) are denied without prejudice.
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Dated: November 7, 2011
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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