Michael Burtscher v. Ivan Moore

MEMORANDUM

Ivan Rene Moore appeals pro se from the district court’s default judgment in an action alleging copyright infringement and breach of contract. We have jurisdiction under 28 U.S.C., § 1291 . We review for an abuse of discretion the entry of default under Fed.R.Civ.P. 55(a) and the district court’s decision to enter default judgment under Rule 55(b). Speiser, Krause & Mu-dole P.C. v. Ortiz, 271 F.3d 884, 886 (9th Cir.2001). We affirm in part, vacate in part, and remand.

The district court did not abuse its discretion in dismissing Moore’s counterclaims after Moore failed to attend his deposition, to keep the court apprised of his current address, and to attend multiple hearings. See Al-Torki v. Kaempen, 78 F.3d 1381, 1384-85 (9th Cir.1996) (setting forth standard of review and describing factors to be considered before dismissing counterclaims for lack of prosecution under Fed.R.Civ.P. 41(b)).

However, the district court improperly ordered the clerk to strike Moore’s answer and to enter default against Moore under Fed.R.Civ.P. 55(a) after Moore filed an answer and, for a time, participated in the litigation. See Fed.R.Civ.P. 55(a); cf. Direct Mail Specialists, Inc. v.…