Faunce v. Covello
- Proceeding
- district
- Area
- civil
- Panel
- Michael M. Anello (author)
Analysis
Plaintiff, a pro se prisoner, moved for entry of default and default judgment against five defendants in a civil rights action. The court denied the motion as premature because the defendants' time to respond had not expired and procedurally improper because the plaintiff had not first obtained an entry of default from the Clerk.
| What the court decided | The model |
|---|---|
Denial of Plaintiff's Motion for Entry of Default and Default Judgment“For the foregoing reasons, the Court DENIES Plaintiff's motion for entry of default and default judgment.” | agree with court The court correctly identified that the motion was premature because the 60-day response period under Rule 12(a)(1)(A)(i) had not yet expired (deadline was September 21, 2021, motion filed September 20, 2021). Additionally, the court correctly noted that under Rule 55, entry of default by the Clerk is a prerequisite to a motion for default judgment, which the plaintiff had not obtained. |
The order itself: sound — The order is sound. It correctly applies Federal Rules of Civil Procedure 12(a) and 55. The court accurately calculated the deadline for response based on the waiver of service and correctly identified the procedural requirement that entry of default must precede a motion for default judgment. The reasoning is concise and directly addresses the deficiencies in the plaintiff's motion.
Opinion
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 DAVID W. FAUNCE, Case No. 21-cv-363-MMA (WVG)
11 Plaintiff, ORDER DENYING PLAINTIFF’S 12 v. MOTION FOR ENTRY OF DEFAULT AND DEFAULT 13 J. MARTINEZ, et al., JUDGMENT 14 Defendants. [Doc. No. 9] 15 16 Plaintiff David W. Faunce, a California state prisoner proceeding pro se, brings 17 this civil rights action against five officials at the R.J. Donovan Correctional Facility 18 pursuant to 28 U.S.C. § 1983. See Doc. No. 1. After conducting the requisite screening, 19 the Court directed the U.S. Marshal to effect service upon the named Defendants on 20 Plaintiff’s behalf. See Doc. No. 4. 21 Plaintiff now moves for entry of default and default judgment. See Doc. No. 9. 22 For the reasons set forth below, the Court DENIES Plaintiff’s motion. 23 DISCUSSION 24 As an initial matter, it appears that Defendants J. Martinez, E. Ortiz, C. Godinez, 25 and T. McWay were served at the R.J. Donovan Correctional Facility, and executed 26 waivers of service, between August 23 and 25, 2021. See Doc. Nos. 10–13. The 27 summons and complaint as to Defendant H. Terrel was returned unexecuted on 28 September 7, 2021. See Doc. No. 7. Nonetheless, the waivers of service indicate that, 1 || pursuant to Federal Rule of Civil Procedure 12(a)(1)(A)(i1), the deadline for filing a 2 ||response to the complaint is sixty days from July 23, 2021. See Doc. Nos. 10-13. 3 || Accordingly, Plaintiff's motion is premature as Defendants’ time to respond to the 4 || complaint has not yet expired.! 5 Moreover, the Court notes that obtaining a default judgment is a two-step process. 6 || See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). First, a party must obtain an 7 || entry of default under Rule 55(a) from the Clerk of Court; thereafter, the party may seek 8 entry of default judgment under Rule 55(b). See Symantec Corp. v. Global Impact, Inc., 9 F.3d 922, 923 (9th Cir. 2009). Plaintiff has not requested nor obtained entry of 10 || default by the Clerk of Court. Accordingly, even if Plaintiff's motion for default 11 ||judgment was timely, it is procedurally improper. See, e.g., Vongrabe v. Sprint PCS, 312 12 || F. Supp. 2d 1313, 1318 (S.D. Cal. 2004) (“[A] plain reading of Rule 55 demonstrates that 13 entry of default by the clerk is a prerequisite to an entry of default judgment.”’). 14 CONCLUSION 15 For the foregoing reasons, the Court DENIES Plaintiff's motion for entry of 16 || default and default judgment. 17 IT IS SO ORDERED. 18 || Dated: September 20, 2021 19 Maite lu - Milter 20 HON. MICHAEL M. ANELLO United States District Judge 22 23 24 25 26 27 60 calendar days from July 23, 2021 is September 21, 2021. Plaintiff filed his motion on September