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Morris v. Fresno Police Dep't

July 6, 2010


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge


(Docket No. 76)

On June 9, 2010, Plaintiffs filed a "Request for Entry of Default" as to all Defendants. For the reasons provided below, Plaintiffs' request is DENIED.


On September 23, 2008, Plaintiffs, proceeding pro se, initiated this action by filing a complaint. On February 18, 2010, Plaintiffs filed a Fifth Amended Complaint against the City of Fresno, Officer Christopher Long, and Officer Jeremy DeMoss (collectively "Defendants"). On March 10, 2010, Defendants filed a motion to dismiss the Fifth Amended Complaint. The hearing on Defendants' motion was scheduled for May 24, 2010. Due to the pending motion to dismiss, on April 30, 2010, the Court rescheduled the initial scheduling conference in this matter from May 14, 2010, to July 7, 2010.

On May 7, 2010, Plaintiffs filed an "Attempted Joint Scheduling Conference and Personal Scheduling Report." In their May 7, 2010, scheduling conference report, Plaintiffs stated that Defendants' counsel informed them that the scheduling conference had been reset, and that Defendants' counsel refused to meet with them personally and was unwilling to discuss the joint scheduling report. Ostensibly, Defendants' counsel's unwillingness to participate in filing a joint scheduling report was due to the fact that the scheduling conference had been continued to July 7, 2010, in light of the pending motion to dismiss. Thus, no scheduling conference report would need to be filed until a week prior to July 7, 2010, if at all, given the pending motion to dismiss.

On May 28, 2010, the Court granted Defendants' motion to dismiss in part and allowed Plaintiffs to file an amended complaint within thirty (30) days of the Court's order. The Court also explicitly ordered Defendants to "submit a form of order consistent with this Memorandum Decision within five (5) days following electronic service of this decision." Defendants failed to timely comply with the Court's order in this regard. On June 9, 2010, Plaintiffs filed this request for an entry of default, contending that Defendants' failure to participate in filing the joint scheduling report on May 7, 2010, and Defendants' failure to file a proposed order as required by the Court on May 28, 2010, entitled them to an entry of default against Defendants. On June 10, 2010, apparently alerted by Plaintiffs' filing that they had failed to comply with the Court's May 28, 2010, order, Defendants belatedly filed a proposed order regarding their motion to dismiss Plaintiffs' Fifth Amended Complaint. Plaintiffs' "Request for Entry of Default" is currently pending before the Court.


A. Legal Standard: Default Judgment

Obtaining a default judgment in federal court is a two-step process that includes: (1) entry of default and (2) default judgment. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). Rule 55 of the Federal Rules of Procedure states that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default." Fed. R. Civ. P. 55(a). After the entry of default has been entered by the clerk of court, the party seeking default may file a motion requesting a judgment of default. Fed. R. Civ. P. 55(b). If a party has made an appearance in the case, Rule 55(b) requires that the court, not the clerk, enter the judgment of default. Fed. R. Civ. P. 55(b)(2); see also Eitel, 782 F.2d at 1471 ("[b]ecause McCool had filed a notice of appearance, entry of judgment by the clerk under Rule 55(b)(1) . . . would have been improper.").

There is no right to a default judgment; its entry is entirely within the discretion of the district court. See Draper v. Coombs, 792 F.2d 915, 925 (9th Cir. 1986); see also, Rashidi v. Albright, 818 F.Supp. 1354, 1356, n.4 (D.Nev. 1993). Defaults are generally disfavored (see Eitel, 782 F.2d at 1472), and courts will attempt to resolve motions for entry of default so as to encourage a decision on the merits. TCI Group Life Ins. Plan v. Knoebber, 224 F.3d 691, 696 (9th Cir. 2001). Courts consider several factors in exercising discretion as to the entry of default judgment, including: (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 the 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.

The court also possesses inherent power to sanction a party through dismissal or entry of default judgment. Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-65 ("The inherent powers of federal courts are those which are necessary to the exercise of all others," and include "the well-acknowledged inherent power . . . to levy sanctions in response to abusive litigation practices."). In the Ninth Circuit, "courts have inherent power to dismiss an action when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice." Fjelstad v. Am. Honda Motor Co., Inc., 762 F.2d 1334, 1338 (9th Cir. 1985) (internal quotations omitted). However, due process limits the imposition of the severe sanctions of dismissal or default judgment to "extreme circumstances" and such sanctions not to be imposed "merely for punishment of an infraction that did not threaten to interfere with the rightful decision of the case." Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983); Fjelstad, 762 F.2d at 1338.

B. Analysis

As an initial matter, Defendants have made an appearance in this case; thus, the Clerk of Court will not enter default. Fed. R. Civ. P. 55(a), (b). Rather, Plaintiffs are requesting entry of default as a sanction for Defendants' procedural errors and non-compliance with Court orders. Given this procedural posture, the Court will construe Plaintiff's request as an application ...

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