Shive v. Amazon.com Inc. et al, No. 1:2015cv00406 - Document 72 (D.N.M. 2017)

Court Description: MEMORANDUM OPINION AND ORDER by District Judge James O. Browning, the Plaintiff's Motion for Default Judgment Against Defendant J&C Baseball Clubhouse, Inc., 71 is denied; and the Clerk's Entry of Default, 60 is set aside. (meq)
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Shive v. Amazon.com Inc. et al Doc. 72 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO JAMES SHIVE, Plaintiff, vs. No. CIV 15-406 JB/WPL AMAZON.COM INC.; EBAY, INC.; JOHN LAVECCHIA; J&C BASEBALL CLUBHOUSE, INC.; SEARS HOLDING CORPORATION; UNBEATABLE SALE.COM, INC. and WAL-MART STORES, INC., Defendants. MEMORANDUM OPINION AND ORDER DENYING MOTION FOR DEFAULT JUDGMENT AND SETTING ASIDE DEFAULT THIS MATTER comes before the Court on the Plaintiff’s Motion for Default Judgment Against Defendant J&C Baseball Clubhouse, Inc., filed February 23, 2017 (Doc. 71). The Clerk of the Court entered default against J&C Baseball on August 8, 2016, see Clerk’s Entry of Default, filed August 8, 2016 (Doc. 60), approximately three months after the Court allowed Plaintiff James Shive to reinstate J&C Baseball as a Defendant, see Order Granting Motion to Reinstate Defendant, filed May 19, 2016 (Doc. 58)(“Order of Reinstatement”). However, on August 23, 2016, after J&C Baseball was reinstated as a Defendant, the Honorable William P. Lynch, United States Magistrate Judge for the United States District Court for the District of New Mexico, ordered Shive to re-serve J&C Baseball with (i) the Summons; (ii) the Verified Complaint for Copyright Infringement, filed May 12, 2015 (Doc. 1); (iii) the Order of Reinstatement; and (iv) several additional filings. See Order, filed August 23, 2016 (Doc. 61). This process took approximately six months. See Motion for Extension of Time, filed December Dockets.Justia.com 1, 2016 (Doc. 66); Order Granting Plaintiff’s Motion for Extension of Time, filed December 7, 2016 (Doc. 67); Motion for Extension of Time, filed January 9, 2017 (Doc. 68); Order Granting Plaintiff’s Motion for Extension of Time, filed January 13, 2017 (Doc. 69); Proof of Service, filed February 16, 2017 (Doc. 70). Shive now moves for default judgment pursuant to rule 55 of the Federal Rules of Civil Procedure. The case’s procedural history makes entry of default judgment against J&C Baseball inappropriate. Attaining default judgment is a two-step process: the Clerk must enter default, and then the plaintiff must move for default judgment. In this case, the Clerk’s entry of default was premature. It is unclear that J&C Baseball was served with the Order of Reinstatement on August 8, 2016. Accordingly, the Court exercises its considerable discretion in the area of default to set aside the Clerk’s entry of default. Now that it is clear that J&C Baseball has been appropriately served, Shive may reapply for a Clerk’s entry of default and may refile his Motion for Default Judgment under rule 55. IT IS ORDERED that (i) the Plaintiff’s Motion for Default Judgment Against Defendant J&C Baseball Clubhouse, Inc., filed February 23, 2017 (Doc. 71), is denied; and (ii) the Clerk’s Entry of Default, filed August 8, 2016 (Doc. 60), is set aside. ________________ ____________ UNITED STATES DISTRICT JUDGE Parties and counsel: James Shive Rio Rancho, New Mexico Plaintiff pro se -2- Gregory L. Doll Ronald M. St. Marie Doll Amir & Eley, LLP Los Angeles, California Attorneys for Defendant Amazon.com Inc. Luis M. Ortiz Richard H. Krukar Kevin Lee Soules Ortiz & Lopez, PLLC Albuquerque, New Mexico Attorneys for Defendant Sears Holding Corporation Justin D. Rodriguez Ryan Tobin Jerman Atkinson Thal & Baker, P.C. Albuquerque, New Mexico Attorneys for Defendant Unbeatable Sale.com, Inc. Justin D. Rodriguez Atkinson Thal & Baker, P.C. Albuquerque, New Mexico -- and -Stefan M. Mentzer White & Case LLP New York, New York -- and -Bijal V. Vakil White & Case LLP Palo Alto, California Attorneys for Wal-Mart Stores, Inc. -3-