United States District Court, W.D. Washington, Seattle
ORDER ON MOTIONS
L. ROBART United States District Judge.
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,  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
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.)
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).)
court now addresses the motion for entry of default and the
motion to withdraw.
Motion for Default
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.
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).
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 (Not.) and Mr. Wang did not file an answer
until February 9, 2017 (Answer). 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.
Motion to Withdraw
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.”