Summary
The United States District Court for the Southern District of California denied without prejudice Pinnacle Solana LP’s motion to dismiss. The court held that the motion was precluded because Pinnacle filed it after the Clerk entered default, and explained that Pinnacle’s available recourse was to seek to set aside the entry of default under Federal Rule of Civil Procedure 55(c).
Holdings
- Once the Clerk has entered default, the defendant is generally precluded from participating in the action, including filing a motion to dismiss, until the entry of default is set aside.
- A defendant seeking to defend after entry of default must move to set aside the default under Federal Rule of Civil Procedure 55(c) before participating in the action.
Questions Presented
- Whether a defendant may file a motion to dismiss after the Clerk has entered default against it.
- Whether the defendant's motion to dismiss should be denied without prejudice because the entry of default had not been set aside.
Disposition
other
Cases Cited (7)
- Wahoo Int’l, Inc. v. Phix Doctor, Inc., No. 13-cv-1395-GPC-BLM, 2014 WL 5465373, at *2 n.1 (S.D. Cal. Oct. 28, 2014)(followed)
- Clifton v. Tomb, 21 F.2d 893, 897 (4th Cir. 1927)(followed)
- Transamerica Life Ins. Co. v. Shubin, No. 11-cv-01958-LJO-SKO, 2012 WL 5364645, at *2 (E.D. Cal. Oct. 31, 2012)(followed)
- Joe Hand Prods., Inc. v. Estrada, No. 10-cv-02165-OWW-SKO, 2011 WL 1232606, at *1 n.1 (E.D. Cal. Mar. 31, 2011), adopted, 2011 WL 1557876 (E.D. Cal. Apr. 25, 2011)(followed)
- Jellybean Entm’t, Inc. v. Usnile LLC, No. 13-cv-144-IEG-WMC, 2013 WL 3283845, at *3 (S.D. Cal. June 26, 2013)(followed)
- Oliver v. All-Pro Bail Bonds, Inc., No. 17-cv-1294-AJB-NLS, 2017 WL 11421541, at *1 (S.D. Cal. Aug. 16, 2017)(followed)
- United States v. Mesle, 615 F.3d 1085 (9th Cir. 2010)(followed)
Cited In (0)
No citing cases on record yet.
Court Document
Open PDFLoading document…