The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
This case is before the undersigned pursuant to Local Rule 302(c)(19) and (21). Pending before the court is defendant's September 24, 2012 motion to set aside the Clerk's entry of default. Also pending is plaintiff's September 26, 2012 motion for default judgment and October 1, 2012 cross-motion for judgment by default. On review of the motions, the documents filed in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
Plaintiff initiated this action on April 5, 2011 and is proceeding on a second amended complaint ("SAC") against defendant California Public Employees' Retirement System ("CALPERS"), filed October 11, 2011. Plaintiff brings discrimination and retaliation claims in connection with his receipt of retirement benefits. Because plaintiff is proceeding in this action in forma pauperis, see Doc. No. 6, the court directed the U.S. Marshal to serve CALPERS on January 12, 2012. Doc. No. 12. A summons was also issued that day. See Doc. No. 14.
On April 3, 2012, a Waiver of Service of Summons was filed reflecting
that on March 26, 2012 a senior staff attorney for CALPERS received a
copy of the U.S. Marshal's Request for Waiver of Service of Summons as
well as a copy of the operative complaint and was thereby waiving
service of a summons. Doc. No. 16. Pursuant to the returned waiver,
defendant was granted 60 days after January 27, 2012*fn1
to respond to the SAC. Id. On May 15, 2012, CALPERS filed an
answer. Doc. No. 17.
On June 14, 2012, plaintiff filed a Motion to Proceed with Judgment by Default because of CALPERS's failure to serve an answer to the SAC in the time frame specified in the January 12, 2012 summons. Doc. No. 19. On June 25, 2012, defendant responded to plaintiff's request by noting that it had appeared in this action by filing an answer. Doc. No. 20.
On June 27, 2012, CALPERS filed a status report in anticipation of the scheduling of this case. Doc. No. 21. Though styled as a "Joint Status Report," it was prepared solely by defense counsel and was missing plaintiff's signature. Due to plaintiff's apparent failure to participate in the filing of a joint status report, the court issued an order to show cause why this action should not be dismissed. Doc. No. 22. In response, plaintiff filed a reply in which he asserted that he participated extensively in the preparation of the joint status report and that defendant failed to incorporate his suggestions. Doc. No. 23. Plaintiff also repeated his request to proceed with judgment by default.
On September 10, 2012, following receipt of the parties' status reports and a September 6, 2012 status conference in which both parties appeared, the court issued a scheduling order setting dates in this case. The court also denied plaintiff's motion for entry of default judgment because plaintiff failed to first seek entry of default by the Clerk of the Court pursuant to Federal Rule of Civil Procedure 55.
On September 19, 2012, plaintiff filed a request for entry of default. Doc. No. 27. On September 20, 2012, the Clerk of the Court entered default as to CALPERS. Doc. No. 28.
On September 24, 2012, defendant filed a motion to set aside the Clerk's entry of default. Doc. No. 31. On September 26, 2012, plaintiff filed a motion for default judgment. Doc. No. 35. On October 1, 2012, plaintiff filed a "cross-motion for judgment by default," which the court construes as -- and plaintiff concedes is -- an opposition to defendant's motion. Doc. No. 36; see Doc. No. 39 at 1. Both matters are now fully briefed and ready for disposition.
1. Motion for Default Judgment
Pursuant to Federal Rule of Civil Procedure 55, default may be entered against a party against whom a judgment for affirmative relief is sought who fails to plead or otherwise defend against the action. See Fed. R. Civ. P. 55(a). However, "[a] defendant's default does not automatically entitle the plaintiff to a court-ordered judgment." PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)); see Fed. R. Civ. P. 55(b) (governing the entry of default judgments). Instead, the decision to grant or deny an application for default judgment lies within the ...