Biancur v. Hickey
Biancur v. Hickey
Opinion of the Court
MEMORANDUM
John A. Hickey appeals the district court’s entry of judgment against him. He argues that entry of judgment was inappropriate because the default on which judgment was predicated was void. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion
The district court also correctly rejected Hickey’s arguments that the default was void because the district court dismissed the first amended complaint in its entirety when it granted three other defendants’ motions to dismiss; and because the clerk entered default as to the second amended complaint, which was never filed and never properly served on Hickey.
The district court correctly concluded that the first amended complaint remained operative as to Hickey. Nothing in the motions to dismiss filed by the three other defendants sought dismissal of the claims against Hickey, nor could they properly have done so. And nothing in the district court’s orders granting those motions purported to dismiss the complaint against Hickey. Accordingly, the first amended complaint, which was properly served on Hickey, remained operative as to him.
The district court also correctly concluded that the clerk entered default as to the first amended complaint. Plaintiffs’ reference to the second amended complaint in the affidavit accompanying the application
We note, in further support of the district court’s sound decisions on Hickey’s implied motions to lift the default, that Hickey advances no meritorious defense to any of the claims in the complaint and that his motions were hardly timely.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
. Brady v. United States, 211 F.3d 499, 502 (9th Cir.), cert. denied, 531 U.S. 1037, 121 S.Ct. 627, 148 L.Ed.2d 536 (2000).
. See O’Connor v. Nevada, 27 F.3d 357, 364 (9th Cir. 1994) (noting that when “timely relief is sought from a default ... and the movant has a meritorious defense” courts should favor setting aside a default) (internal quotations and citations omitted).
Reference
- Full Case Name
- A. Lee BIANCUR Linda Biancur La Rue W. Bean Allen Murphy Robert Schlenzig Gail Schlenzig, on behalf of themselves and others similarly situated, Plaintiffs—Appellees v. John A. HICKEY, Defendant—Appellant
- Cited By
- 1 case
- Status
- Published