The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER ON PLAINTIFFS' REQUEST FOR DEFAULT JUDGMENT AS TO DEFENDANT Plaintiffs, ) JEREMY DEMOSS
On September 11, 2009, Plaintiffs filed a "Renewed Request As Ordered To Defendant Jeremy DeMoss Alone For Default." (Doc. 50.) For the reasons given below, Plaintiffs' request is DENIED.
On September 23, 2008, Plaintiffs initiated this action by filing a complaint. (Doc. 1.) On July 28, 2009, Plaintiffs filed a Third Amended Complaint (Doc. 37) and summonses were issued on August 5, 2009. (Doc. 40.)
Following an earlier request for default as to all Defendants, Plaintiffs were advised in this Court's September 8, 2009, Order that Defendants Long and the Fresno Police Department filed a timely response to Plaintiffs' complaint by the filing of a motion to dismiss on September 1, 2009. This was so because Long and the Fresno Police Department were served with service of process on August 12, 2009 (Docs. 44-45), thus a responsive pleading was on file within twenty days. Further, Plaintiffs were advised that while it appeared a response by Defendant DeMoss was untimely, if they wished to seek default as to Defendant DeMoss they should make a renewed request as to that Defendant and they were "cautioned to familiarize themselves with the Federal Rules of Civil Procedure and this Court's Local Rules." (Doc. 47 at 7-8.)
On September 11, 2009, Plaintiffs filed the instant "renewed request." (Doc. 50.) On September 15, 2009, Defendant DeMoss filed his objection. (Doc. 51.) Plaintiffs did not file a reply.
Plaintiffs assert that because Defendant DeMoss's responsive pleading was due on August 31, 2009, they are entitled to entry of default where the responsive pleading was filed one day later on September 1, 2009. (Doc. 50 at 1.) Defendant DeMoss responds by indicating the one-day late filing was the result of mistake, inadvertence, and excusable neglect, and that Plaintiffs have not been prejudiced as a result. (Doc. 51 at 1.)
Rule 55 of the Federal Rules of Civil Procedure provides as follows, in relevant part:
(a) Entering a Default. 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.
(b) Entering a Default Judgment.
(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk - on the plaintiff's request, with an affidavit showing the amount due - must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
(2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 3 days before the hearing. The court may conduct ...