Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. Wang

United States District Court, W.D. Washington, Seattle

February 10, 2017

GEORGE JOHNSON, Plaintiff,
v.
DONALD P. WANG, et al., Defendants.

          ORDER ON MOTIONS

          JAMES L. ROBART United States District Judge.

         I. INTRODUCTION

         Before the court are Plaintiff George Johnson's motion for default (MFD (Dkt. # 9)) and counsel for Defendant Donald P. Wang's motion to withdraw from this matter (MTW (Dkt. # 12)). The court has considered the motions, the relevant portions of the record, and the applicable law. Being fully advised, [1] the court GRANTS Mr. Johnson's // motion for entry of default, DIRECTS the Clerk to enter default, and GRANTS counsel for Mr. Wang's motion to withdraw.

         II.BACKGROUND

         On November 10, 2016, Mr. Johnson filed his complaint in this matter. (Compl. (Dkt. # 1).) Mr. Johnson alleges that Mr. Wang failed to pay Mr. Johnson $7, 380.00 in wages. (Id. ¶ 8.) Mr. Johnson seeks compensatory and punitive damages for the alleged failure to pay wages, attorney's fees and costs, prejudgment interest, and other forms of relief. (See Id. ¶¶ 7-8.)

         On January 24, 2017, Mr. Johnson moved for entry of default against Mr. Wang. (MFD at 1.) Mr. Johnson supports his motion for entry of default with a declaration attesting that Mr. Wang was served on December 31, 2016. (See Merriam Decl. (Dkt. # 10) ¶ 2, Ex. 1.) Later that same day, attorney Thomas Waller appeared on Mr. Wang's behalf. (Not. (Dkt. # 11).) On February 2, 2017, Mr. Waller moved to withdraw as Mr. Wang's attorney. (MTW at 1.) On February 9, 2017, Mr. Wang filed an answer pro se. (Answer (Dkt. # 13).)

         The court now addresses the motion for entry of default and the motion to withdraw.

         III. ANALYSIS

         A. Motion for Default

         Federal Rule of Civil Procedure 55(a) provides: “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a). The court's local rules provide that an affidavit filed in support of a motion for default “shall specifically show that the defaulting party was served in a manner authorized by Fed.R.Civ.P. 4.” See Local Rules W.D. Wash. LCR 55(a). In other words, proper service of the summons and complaint is a prerequisite to an order of default. See id.

         A party fails to defend against the action when the party fails to file an answer or other responsive pleading. See Friedmann v. Washington, No. 09-5761RJB, 2010 WL 890053, at *1 (W.D. Wash. Mar. 8, 2010) (finding the entry of default inappropriate where the defendants had filed an answer); but see Hunter v. Dutch Gold Resources, Inc., No. 1:11-cv-01450-CL, 2012 WL 3614336, at *1 (D. Or. Aug. 20, 2012) (finding that a party may signal that it intends to defend against the action by stating its intent and actively seeking counsel to represent it). A failure to defend makes it impractical-if not impossible-for the court to adjudicate the matter on the merits. See Keehi Marine, Inc. v. Mia, No. 14-00411 LEK-RLP, 2016 WL 3571421, at *3 (D. Haw. May 10, 2016).

         Because Mr. Wang failed to defend against the action by the time Mr. Johnson moved for entry of default, the Clerk must enter default. See Fed. R. Civ. P. 55(a); (Dkt.) Mr. Johnson moved for entry of default on January 24, 2017 (MFD), whereas Mr. Wang's attorney did not appear in this matter until later that day[2] (Not.) and Mr. Wang did not file an answer until February 9, 2017 (Answer).[3] Mr. Wang does not oppose Mr. Johnson's motion. (See Dkt.) In addition, Mr. Johnson provides an affidavit that specifically shows that he served Mr. Wang with a copy of the summons and complaint on December 31, 2016. (Merriam Decl. ¶ 2, Ex. 1.) For these reasons, the court concludes that entry of default against Mr. Wang is appropriate and directs the Clerk to enter Mr. Wang's default. If Mr. Wang wishes to defend against the action, he may move to set aside the default pursuant to Federal Rule of Civil Procedure 55(c) or contest any future motion for default judgment.[4]

         B. Motion to Withdraw

         Local Civil Rule 83.2(b)(1) provides that unless there is a change of counsel within the same law firm, an attorney may withdraw from representation only by leave of court. Local Rules W.D. Wash. LCR 83.2(b)(1). “Leave shall be obtained by filing a motion or a stipulation and proposed order for withdrawal . . . .” Id. The court will ordinarily permit an attorney to withdraw until 60 days before the discovery cut-off. Id. A motion for withdrawal “shall include a certification that the motion was served on the client and opposing counsel.” I ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.