ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a first amended civil rights complaint filed pursuant to 42 U.S.C. § 1983.
I. MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT On July 19, 2012, plaintiff filed a motion for leave to amend to file a second
amended complaint. (Dkt. No. 30.) To date, defendants have not
responded to plaintiff's motion for leave to amend.*fn1
Accordingly, the defendants will be ordered to show cause
within twenty-one days of the date of this order why plaintiff's
motion for leave to amend to file a second
amended complaint should not be granted.
II. MOTION FOR DEFAULT JUDGMENT
Plaintiff also filed a motion for default judgment on August 3, 2012. Obtaining a default judgment in federal court is a two-step process. See 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); Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) ("Eitel apparently fails to understand the two-step process required by Rule 55."). First, the party seeking such a judgment must obtain an entry of default. This step is governed by Federal Rule of Civil Procedure 55(a) which provides as follows:
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.
Second, after default is entered, the party seeking default judgment may request entry of such judgment in one of two ways. See FED. R. CIV. P. 55(b). The party may request entry of default judgment by the Clerk "[i]f the plaintiff's claim is for a sum certain or a sum that can be made by computation." FED. R. CIV. P. 55(b)(1). "In all other cases, the party must apply to the court for a default judgment." FED. R. CIV. P. 55(b)(2).
Because there is a two-step process for obtaining a default judgment, courts routinely deny motions for default judgment where default has not been previously entered. See Leubner v. County of San Joaquin, Civ. No. 08-0853, 2012 WL 530192, at *1 (E.D. Cal. Feb. 17, 2012) (citing Marty v. Green, Civ. No. 11-1823, 2011 WL 320303, at *3 (E.D. Cal. Jan. 28, 2011)); Norman v. Small, Civ. No. 09-2233, 2010 WL 5173683, at *2 (S.D. Cal. Dec. 14, 2010); Bach v. Mason, 190 F.R.D. 567, 574 (D. Idaho 1999)), report and recommendation adopted by, 2012 WL 895430 (E.D. Cal. Mar. 15, 2012). In this case, plaintiff did not request or obtain a clerk's entry of default against the defendants. Accordingly, plaintiff's motion for default judgment is not well-supported and should be denied.
III. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Plaintiff has also filed a motion for summary judgment. (See Dkt. No. 34.) Federal Rule of Civil Procedure 56(a) provides as follows with respect to a motion for summary judgment:
A party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material issue of fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.
Discovery has not yet commenced in this case. Indeed, as noted above, defendants have filed a motion to dismiss plaintiff's first amended complaint and that motion is still currently pending before the court. Thus, Plaintiff's motion for summary judgment is premature at this time and will be denied without prejudice.
Accordingly, IT IS HEREBY ...