United States District Court, D. Oregon
KELLY A. BARNETT, Plaintiff,
UBIMODO, INC., et al, Defendants.
OPINION AND ORDER
Michael J. McShane United States District Judge
Kelly Barnett moves this Court for entry of default against
Defendants (1) Ubimodo, Inc.'s Board of Directors and
Advisory Board and Ubimodo Insurance LLC's Advisory
Board; (2) the Soteria Institute and its Advisory Board/Board
of Directors; (3) Ubimodo LTD Canada and its Advisory
Board/Board of Directors; and (4) Scott Warner. ECF Nos. 74,
75, 77, 78. For the reasons set forth below, Plaintiff's
Motions, ECF Nos. 74, 75, and 77, are DENIED, and ECF No. 78
defendant must file a responsive pleading within 21 days of
being served, or within 60 days if the defendant has timely
waived service. Fed.R.Civ.P. 12(a)(1). “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).
entering an order of default, the district court has
discretion to issue a default judgment. See Fed. R.
Civ. P. 55(b); DirecTV, Inc. v. Huynh, 503 F.3d 847,
852 (9th Cir. 2007), cert. denied, 555 U.S. 937
(2008). This Court has "considerable leeway as to what
it may require as a prerequisite to the entry of a default
judgment." TeleVideo Sys., Inc. v. Heidenthal,
826 F.2d 915, 917 (9th Cir. 1987) (per curiam) (footnote
omitted). This Court may take the complaint's
well-pleaded factual allegations as true, other than the
amount of damages. Id. at 917-18 (citation omitted);
Huynh, 503 F.3d at 854 (citations omitted); see
also Fed. R. Civ. P. 8(b)(6). “However, a
‘defendant is not held to admit facts that are not
well-pleaded or to admit conclusions of law.'”
Huynh, 503 F.3d at 854 (quoting Nishimatsu
Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200,
1206 (5th Cir. 1975)).
moves for entry of default against Ubimodo, Inc.'s Board
of Directors and Advisory Board, Ubimodo Insurance LLC's
Advisory Board, Ubimodo LTD Canada, Ubimodo LTD Canada's
Advisory Board/Board of Directors, and Scott Warner, alleging
that they failed to respond. ECF Nos. 74, 77, 78.
has timely and appropriately filed responsive pleadings.
Ubimodo, Inc., Ubimodo Insurance LLC, and Ubimodo LTD Canada
and its advisory board/board of directors (collectively
“Ubimodo”) filed a Motion to Dismiss on June 7,
2018. ECF No. 27. This Court granted the Motion without
prejudice on August 21, 2018. Op. and Order, ECF No. 40.
Plaintiff filed an Amended Complaint on September 21, 2018.
No. 41. Ubimodo, Inc., Ubimodo Insurance LLC, and Ubimodo LTD
Canada filed an Answer on October 5, 2018. ECF No. 42.
Inc.'s and Ubimodo Insurance LLC's Boards of
Directors and Advisory Boards are not individual entities who
must respond separately. In fact, Plaintiff's Amended
Complaint lists only Scott Warner, Michael Corning, and two
other companies as Defendants. Pl.'s Am. Compl. 1-2, ECF
No. 41. The caption in the Amended Complaint, meanwhile,
names “Ubimodo, Inc.; Ubimodo Insurance LLC; Ubimodo
LTD Canada; its Advisory Board/Board of Directors, ”
etc. Id. at 1. These Defendants have responded.
under Local Rule 55-1, “If the party against whom an
order or judgment of default pursuant to Fed.R.Civ.P. 55 is
sought has filed an appearance in the action… then LR
7-1 and LR 83-8 apply, and the parties must make a good faith
effort to confer before a motion or request for default is
filed.” Here, Ubimodo filed an appearance and Plaintiff
failed to confer before filing her motion for default.
See Defs.' Resp. 2, ECF No. 79. For these
reasons, Plaintiff's Motions regarding Ubimodo are
to Scott Warner, Ubimodo's Motion to Dismiss defined
“Ubimodo” as “Ubimodo, Inc., Ubimodo
Insurance LLC, Ubimodo LTD Canada, its advisory board/board
of directors, and Scott Warner.” Defs.'
Mot. 2 (emphasis added). In Ubimodo's Answer, they
admitted that Scott Warner is Chairman and CEO of Ubimodo but
did not mention him in their description of
“Ubimodo” or elsewhere. See Defs.'
Answer 2. Both responses indicate that Shannon McCabe and
Michael McLane are “[a]ttorneys for Defendants Ubimodo,
Inc., Ubimodo Insurance LLC, and Ubimodo LTD Canada.”
Defs.' Mot. 1; Defs.' Answer 1. It is unclear whether
they also represent Scott Warner and whether his Answer is
encompassed in Ubimodo's.
further complicate matters, summons was issued as to Ubimodo,
Inc., Ubimodo Insurance LLC, and Scott Warner jointly-not
Scott Warner individually-and service was apparently only
perfected as to Ubimodo Insurance LLC. See ECF Nos.
16 and 20. It is difficult to imagine that Scott Warner has
not received notice that he has been named in this action.
Even so, Plaintiff did not serve him. Therefore, if he has
not appeared in this action, entry of default would be
Court requires a notice of clarification from Ubimodo within
7 days of this Opinion and Order, stating whether (1) Scott
Warner was served or waived service when Ubimodo included him
in their Motion to Dismiss; (2) he is represented; and (3) if
he is not represented, why he was included in the Motion to
Dismiss but not in the Answer. Plaintiff's Motion
regarding Scott Warner will be stayed until these issues are
also moves for entry of default against “[t]he Soteria
Institute, Jane and John Doe Board of Directors, and/or John