The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING MOTION FOR DEFAULT JUDGMENT
On August 11, 2010, Plaintiff filed a motion for default judgment. (Doc. 38.) On August 19, 2010, the Commissioner of Social Security ("Defendant" or the "Commissioner") filed an opposition. (Doc. 39.) On August 26, 2010, Plaintiff filed a reply. (Doc. 41.) Based on a review of the pleadings, the Court determines that the matter is suitable for decision without oral argument pursuant to Local Rule 230(g). Plaintiff's motion for default judgment is DENIED.
Plaintiff filed this action on August 11, 2009. (Doc. 1.) On August 20, 2009, the Court granted Plaintiff's application to proceed in forma pauperis. (Doc. 6.) On September 17, 2009, the Court dismissed Plaintiff's complaint with leave to amend. (Doc. 8.) Plaintiff filed an amended complaint on October 16, 2009. (Doc. 10.) On October 28 and 30, 2009, the Court issued its scheduling order and summons to Defendant. (Docs. 14, 17.) Thereafter, Defendant received service of process on March 5, 2010. (Doc. 29.)
Pursuant to the Court's scheduling order, Defendant had 120 days from the date it received service of process within which to file the administrative record. (See Doc. 17 ¶ 2 ("Within one hundred twenty (120) days after service of the complaint, respondent shall serve a copy of the administrative record on appellant and file it with the court. The filing of the administrative record shall be deemed an answer to the complaint.").) Thus, because Defendant was served on March 5, 2010, Defendant had through and including July 6, 2010, within which to file the administrative record in this matter.
On June 9, 2010, Plaintiff filed a motion for entry of judgment. (Doc. 33.) The Court denied Plaintiff's motion on June 15, 2010, because Defendant's answer was not yet due. (Doc. 35.) On July 7, 2010, Defendant filed the administrative record. (Doc. 36.)
Plaintiff has filed the present motion requesting default judgment because Defendant filed his answer one day late. (Doc. 38.) Defendant opposes Plaintiff's motion for default judgment on the basis that Plaintiff's motion does not establish the merits of her claim but merely asks for default judgment because the government's answer was filed one day late. (Doc. 39.) Defendant argues the motion is, therefore, insufficient.
Plaintiff requests entry of default judgment. The Court construes Plaintiff's request as a motion pursuant to Fed. R. Civ. P. 55(b)(2), which provides:
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--when to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter.
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 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, 1471-72 (9th Cir. 1986).
As a preliminary matter, Plaintiff's motion is procedurally deficient. Before filing a motion for default judgment, default must be entered by the Clerk of the Court. Fed. R. Civ. P. 55(a). If default had been entered, Plaintiff may 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 Fed. R. Civ. P. 7(b)(1) and Local Rule 101, and it should include briefs pursuant to Local Rule 230(b). ...