Philadelphia Indemnity Ins. Co. v. Wilson

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

PHILADELPHIA INDEMNITY No. 2:20-cv-1419 TLN DB

INSURANCE COMPANY,

Plaintiff, ORDER v.

ROGER WALTER WILSON; PHILIP

WIEGMAN; LAKESHORE PACIFIC

ENTERPRISES, INC.; LAKESHORE

PACIFIC NEVADA, INC.; DANIELLE

ALVES; KIMBERLY GRAY; MISTY

POIESZ,

Defendants.

On July 29, 2021, plaintiff filed a motion for default judgment and noticed the motion for hearing before the undersigned on August 27, 2021, pursuant to Local Rule 302(c)(19). (ECF No. 29.) It does not appear, however, that plaintiff filed proof of service of notice of the motion on the defendants. It is true that service of a motion for default judgement on a defaulting party is not required. See Fed. R. Civ. P. 55(b)(2) (requiring that written notice of an application for default judgment be served upon the party against whom judgment is sought only if that party “has appeared in the action”); Local Rule 135(d) (excusing parties from serving documents //// submitted to the court upon “parties held in default for failure to appear” unless a document asserts new or additional claims for relief against the defaulting parties).

However, it is also true that a defendant’s “appearance need not necessarily be a formal one, i.e., one involving a submission or presentation to the court. In limited situations, informal contacts between the parties have sufficed when the party in default has thereby demonstrated a clear purpose to defend the suit.” Wilson v. Moore & Associates, Inc., 564 F.2d 366, 369 (9th Cir. 1977). Therefore, out of an abundance of caution, it is the undersigned’s practice to request that a plaintiff seeking default judgment serve all defendants with notice of the motion for default judgment.

Accordingly, IT IS HEREBY ORDERED that:

1. The August 27, 2021 hearing of plaintiff’s motion for default judgment (ECF No. 29) is continued to October 8, 2021;

2. On or before September 3, 2021, plaintiff shall serve a copy of the motion for default judgment, and a copy of this order, on each defendant; and

3. On or before October 1, 2021, plaintiff shall file proof of such service.

DATED: August 23, 2021 /s/ DEBORAH BARNES

UNITED STATES MAGISTRATE JUDGE

DLB:6

DB/orders/orders.pro se/philadelphia1419.serve.mdj.ord