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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Albert L Jacobs, Jr., et al.,

Plaintiffs,

v. 

Wheaton Van Lines Incorporated,

Defendant.

No. CV-17-03967-PHX-JAT

ORDER 

 Pending before the Court are Plaintiffs’ Motion for a Temporary Restraining 

Order (“Motion for TRO”) (Doc. 11), Plaintiffs’ Motion for a Preliminary Injunction 

(“Motion for Preliminary Injunction”) (Doc. 13), and Plaintiffs’ Motion for Default 

Judgment (Doc. 14).1

The Court now rules on the motions. 

I. MOTIONS FOR TRO AND PRELIMINARY INJUNCTION 

A. Background 

 On December 6, 2017, Albert Jacobs and Linda Jacobs (collectively and 

individually, “Plaintiffs”) filed the pending Motion for TRO (Doc. 11) and Motion for 

Preliminary Injunction (Doc. 13) against Wheaten Van Line, Inc. (“Defendant”). 

Plaintiffs seek a TRO and preliminary injunction to prevent Defendant from maintaining 

 

1

 For any future filings, the Court directs Plaintiffs’ attention to District of Arizona 

Local Rule Civil 7.1(b), which provides in part: “All pleadings, motions and other 

original documents filed with the Clerk shall be in a fixed-pitch type size no smaller than 

ten (10) pitch (10 letters per inch) or in a proportional font size no smaller than 13 point, 

including any footnotes.” LRCiv 7.1(b) (emphasis added). 
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a state court action in Maricopa County Superior Court against Plaintiffs. (See Doc. 11 at 

1-2). The Maricopa County Superior Court previously set December 14, 2017 as the date 

for Arbitration in Defendant’s state court claim against Plaintiffs. (See id. at 1). 

B. Legal Standard 

 The test for a TRO is the same test as for a preliminary injunction. See, e.g., Ron 

Barber for Cong. v. Bennett, CV-14-02489-TUC-CKJ, 2014 WL 6694451, at *2 (D. 

Ariz. Nov. 27, 2014). Under Rule 65(b) of the Federal Rules of Civil Procedure 

(“FRCP”), plaintiffs seeking a TRO or a preliminary injunction must establish: (1) a 

likelihood of success on the merits, (2) a likelihood of irreparable harm in the absence of 

preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in 

the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 

374, 172 L. Ed. 2d 249 (2008). Alternatively, the Ninth Circuit also provides that, when 

the latter requirements are met, “[a] preliminary injunction is appropriate when a plaintiff 

demonstrates . . . that serious questions going to the merits were raised and the balance of 

hardships tips sharply in the plaintiff’s favor.” Alliance for the Wild Rockies v. Cottrell, 

632 F.3d 1127, 1134-35 (9th Cir. 2011) (internal citations and quotations omitted). 

C. Analysis 

“The Younger abstention doctrine, as originally articulated by the Supreme Court, 

forbids federal courts from staying or enjoining pending state court proceedings.” 

AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1147 (9th Cir. 2007) (internal 

quotations omitted) (citing Younger v. Harris, 401 U.S. 37, 41 (1971)); see also 28 

U.S.C. § 2283; Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 

423, 431 (1982) (“Younger v. Harris[], and its progeny espouse a strong federal policy 

against federal-court interference with pending state judicial proceedings absent 

extraordinary circumstances.”). Here, the Court may not intervene in the Maricopa 

County Superior Court proceedings referenced by Plaintiffs. As such, Plaintiffs have 

failed to demonstrate any likelihood of success on the merits because this Court is unable 
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to provide the relief Plaintiffs seek. Accordingly, Plaintiffs’ Motion for TRO (Doc. 11) 

and Motion for Preliminary Injunction (Doc. 13) are hereby denied.2

II. MOTION FOR DEFAULT JUDGMENT 

 On December 6, 2017, Plaintiffs filed the pending Motion for Default Judgment 

(Doc. 14). 

A. Background 

Plaintiffs argue that “Defendant was serve[d] November 3rd[,] 2017,” but 

Defendant failed to answer or otherwise plead to the Complaint (Doc. 1) in a timely 

manner. (Doc. 14 at 2). Under FRCP Rule 12, a defendant must serve an answer “within 

21 days after being served with the summons and complaint.” Under FRCP Rule 55(a), if 

a properly served party fails “to plead or otherwise defend, and that failure is shown by 

affidavit or otherwise, the clerk must enter the party’s default.” In this case, Defendant 

did not answer or otherwise plead within 21 days of the day Defendant was purportedly 

served. Defendant first responded to Plaintiffs’ Complaint (Doc. 1) several days after this 

deadline with a Motion to Dismiss (Doc. 16) filed on December 8, 2017. 

B. Legal Standard 

“As a general rule, default judgments are disfavored; cases should be decided 

upon their merits whenever reasonably possible.” Westchester Fire Ins. Co. v. Mendez, 

585 F.3d 1183, 1189 (9th Cir. 2009) (citation omitted); see also Eitel v. McCool, 782 

F.2d 1470, 1472 (9th Cir. 1986) (explaining that the “strong policy underlying the 

Federal Rules of Civil Procedure favors decisions on the merits”). Districts courts have 

“broad discretion” in ruling on motions for default judgments. Lowery v. Barcklay, CV12-1625-PHX-RCB, 2013 WL 2635576, at *4 (D. Ariz. June 12, 2013); see, e.g., Draper 

v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986) (holding that a district court did not 

abuse its discretion in denying a motion for default where a defendant answered late, but 

the plaintiff did not show prejudice from the delay); Aldabe v. Aldabe, 616 F.2d 1089, 

 

2

 The Court need not analyze the remaining elements of the Winter test because 

Plaintiffs failed to establish the first element and must establish all elements in order for 

their motion to succeed. 
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1092 (9th Cir. 1980) (holding that a district court did not abuse its discretion in declining 

to enter a default judgment in favor of a plaintiff where the plaintiff’s substantive claims 

lacked merit). The Ninth Circuit Court of Appeals provides that a district court may look 

at the following factors in considering a motion for default: 

(1) the possibility of prejudice to the plaintiff, (2) the merits 

of plaintiff’s substantive claim, (3) the sufficiency of the 

complaint, (4) the sum of money at stake in the action; (5) the 

possibility of a dispute concerning material facts; (6) whether 

the default was due to excusable neglect, and (7) the strong 

policy underlying the Federal Rules of Civil Procedure 

favoring decisions on the merits. 

Eitel, 782 F.2d at 1471-72. 

C. Analysis 

Here, several factors weigh in favor of denying the instant motion. Plaintiffs have 

not made any showing of prejudice as a result of Defendant’s failure to comply strictly 

with the time requirements of FRCP Rule 55(a) because Plaintiffs seek relief that this 

Court may not provide. See supra part I(C). Additionally, Plaintiffs have not shown any 

likelihood of success on the merits. Defendant fails to provide an excuse for its late 

answer, but Plaintiffs similarly fail to provide a compelling reason to overcome the strong 

policy preference against default. See Eitel, 782 F.2d at 1472. Accordingly, Plaintiffs’ 

Motion for Default Judgment (Doc. 14) is hereby denied. 

 Plaintiffs have 30 days from the date of service of Defendant’s pending Motion to 

Dismiss (Doc. 16)—which occurred on December 8, 2017—within which to serve and 

file a responsive memorandum in opposition. See LRCiv. 12.1(b), 56.1(d). 

///

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III. CONCLUSION 

 For the reasons set forth above, 

IT IS ORDERED that Plaintiffs’ Motion for TRO (Doc. 11) is DENIED. 

 IT IS FURTHER ORDERED that Plaintiffs’ Motion for Preliminary Injunction 

(Doc. 13) is DENIED. 

 IT IS FURTHER ORDERED that Plaintiffs’ Motion for Default Judgment (Doc. 

14) is DENIED. The Clerk of the Court shall not enter judgment at this time. 

Dated this 13th day of December, 2017.