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Milos Leubner v. County of San Joaquin

February 16, 2012

MILOS LEUBNER, PLAINTIFF,
v.
COUNTY OF SAN JOAQUIN, ET AL., DEFENDANTS.



ORDER AND FINDINGS & RECOMMENDATIONS

Pending before this court are plaintiff's January 23, 2012 request for extension of time and request for order to complete Cleariana Leubner's deposition; and his January 30, 2012 motion for default judgment, motion to deem admitted certain Requests for Admissions and a motion to compel the deposition of Cleariana Leubner. The court has determined that the matter shall be submitted upon the record and briefs on file and accordingly, the date for hearing of this matter shall be vacated. Local Rule 230.

RELEVANT PROCEDURAL BACKGROUND

This action commenced on April 22, 2008 and is proceeding on a third amended complaint filed July 23, 2009. The scheduling order, already modified three times (see Doc. Nos. 124, 152, 161, 163), sets forth the following discovery dates: (1) all non-expert discovery shall be completed, and all motions pertaining to discovery shall be noticed to be heard, by January 26, 2012; (2) the parties are to exchange lists of expert witnesses is set at February 23, 2012; and (3) expert discovery shall be completed on or before March 23, 2012.

DISCUSSION

1. Motion for Default Judgment

Plaintiff first seeks default judgment as to defendant Kenneth Egi.

Federal Rules of Civil Procedure 55 governs the entry of default by the clerk and

the subsequent entry of default judgment by either the clerk or the district court. In pertinent part, Rule 55 provides:

(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 ....

The Ninth Circuit Court of Appeals has stated that Rule 55 requires a "two-step process," consisting of: (1) seeking the clerk's entry of default, and (2) filing a motion for entry of default judgment. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir .1986) ("Eitel apparently fails to understand the two-step process required by Rule 55."); Symantec Corp. v. Global Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009) (noting "the two-step process of 'Entering a Default' and 'Entering a Default Judgment' ").

In light of the requirement to obtain entry of default before seeking default judgment, courts deny motions for default judgment where default has not been previously entered. See, e.g., Marty v. Green, No. 2:10-cv-1823-KJM-KJN, 2011 WL 320303, at *3 (E.D. Cal. Jan. 28, 2011) ("Plaintiff's motion for default judgment is denied because plaintiff did not follow the procedural steps required to properly file a motion for default judgment. Specifically, plaintiff failed to seek a clerk's entry of default from the Clerk of Court prior to filing his motion for default judgment."); Norman v. Small, No. 09-cv-2233-WQH-NLS, 2010 WL 5173683, at *2 (S.D. Cal. Dec. 14, 2010) (denying plaintiff's motion for default judgment because "the clerk has not entered default"); Bach v. Mason, 1901 F.R.D. 567, 574 (D. Idaho 1999) ...


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