The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
ORDER DENYING PLAINTIFF'S MOTION FOR HEARING (Docs. 14, 15, 20 and 21)
On April 13, 2010, Plaintiff, Zabian Crosby ("Plaintiff") filed a Motion for Default Judgment. (Docs. 14 and 15). The Commissioner of Social Security ("Defendant") filed an opposition on April 28, 2010. (Doc. 18). Plaintiff did not file reply. Instead on May 13, 2010, Plaintiff filed a Motion for a Hearing. (Docs. 20 and 21).
Based on a review of the pleadings, the Court determined that the matter is suitable for decision without oral argument pursuant to Local Rule 230 (h). Plaintiff's Motion for Hearing is DENIED. Plaintiff's Motion for Default Judgment is also DENIED.
Plaintiff filed this action on October 7, 2009. (Doc. 1.) On October 9, 2009, this Court granted Plaintiff's application to proceed in forma pauperis. (Doc. 3.) On that same date, the Court issued its Scheduling Order and Summons to Defendant. (Docs. 4 & 5.) Thereafter, Defendant received service of process on December 7, 2009. (Doc. 8.)
On February 10, 2010, Plaintiff filed a Request for Entry of Default, wherein he asked the Clerk of the Court to enter default against Defendant for its purported failure to respond to the summons within sixty days. (Doc. 10.) On February 17, 2010, the Court denied Plaintiff's request. (Doc. 11). Plaintiff has filed the instant motion on April 13, 2010, requesting default judgment. (Doc. 14).
In the instant motion, Plaintiff requests default judgment because the Defendant filed the administrative record on April 8, 2010 rather than on April 6, 2010, which was the date set forth in this Court's scheduling order.*fn1 Defendant opposes Plaintiff's Motion for Default Judgment on the basis that Plaintiff's motion does not establish the merits of his claim but merely asks for default judgment because the government's answer was filed two days late. (Doc. 18). Defendant argues the motion is therefore insufficient.
Plaintiff moves for entry of default judgment. The Court construes Plaintiff's request as a motion pursuant to Federal Rule of Civil Procedure 55(b)(2), which provides that default judgment may be entered:
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 personally appeared or by a representative, that party or its representative must be served with written notice of the application at least seven days before the hearing. The court may conduct hearings or make referrals -preserving any federal statutory right to a jury trial ...
Factors which may be considered by courts in exercising discretion as to the entry of a default judgment include: (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 v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986).
As a preliminary matter, Plaintiff's motion is procedurally deficient. Prior to filing a motion for default judgment, default must be entered by the Clerk of the Court. Fed. R. Civ. Pro. 55(a). Although Plaintiff had previously requested that entry of default be entered, his request was denied. (Doc. 11). Plaintiff has not renewed this request. If default had been entered, Plaintiff could then file a motion for default judgment. When considering an application for a default judgment, a court must determine whether Plaintiff's claims are legally sufficient. An application for default judgment qualifies as a motion pursuant to Federal Rules of Civil Procedure, Rule 7(b)(1) and Local Rule 101 and it should include ...