Figueroa v. Clerie ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CESAR FIGUEROA, No. 2:18-cv-3275 JAM DB 12 Plaintiff, 13 v. ORDER 14 ELIZABETH M. CLERIE, et al., 15 Defendants. 16 17 On April 11, 2020, plaintiff Cesear Figueroa filed a motion for default judgment. (ECF 18 No. 15.) On February 17, 2021, the assigned District Judge referred the motion to the 19 undersigned. (ECF No. 17.) Review of plaintiff’s motion finds that it is defective in several 20 respects. 21 First, plaintiff directed the motion to the assigned District Judge. (ECF No. 15-2.) As 22 noted by the February 17, 2021 minute order, plaintiff’s motion should have been directed to the 23 undersigned pursuant to Local Rule 302(c)(19). Second, plaintiff’s motion was not noticed for 24 hearing in violation of Local Rule 230. 25 Third, “plaintiff failed to first seek a clerk’s entry of default, which is required before a 26 plaintiff may move for a default judgment.” Marty v. Green, No. 2:10-cv-1823 KJM KJN PS, 27 2011 WL 320303, at *1 (E.D. Cal. Jan. 28, 2011). See Eitel v. McCool, 782 F.2d 1470, 1471 (9th 28 Cir. 1986) (“Eitel apparently fails to understand the two-step process required by Rule 55.”); 1 | Bach Mason, 190 F.R.D. 567, 574 (D. Idaho 1999) (“Plaintiffs have improperly asked this 2 | court to enter a default judgment without first obtaining an entry of default by the clerk. Since 3 | plaintiffs’ motion for entry of default judgment is improper, it is denied.”). 4 Finally, the undersigned is concerned that plaintiff may have named improper defendants 5 | and/or failed to properly serve the defendants. See generally Avitan v. Holder, No. C-10-3288 6 | JCS, 2011 WL 499956, at *6 (N.D. Cal. Feb. 8, 2011) (“Plaintiff does not object to dismissal of 7 | Defendant Eric Holder, who is dismissed from the case on the basis that he is not a proper 8 | defendant in light of the transfer of authority to make visa determinations from the INS to the 9 | Director of USCIS”); Soltan v. Federal Deposit Insurance Corporation, Case No. CV 08-6397 10 | MMM (JWJx), 2009 WL 10699411, at *4 (C.D. Cal. Feb. 17, 2009) (“Under Rule 4(i), a plaintiff 11 | suing a federal agency must (1) personally service the United States Attorney for the district in 12 | which the action is brought, or his designee, or send a copy of the summons and complaint by 13 | registered or certified mail to the civil-process clerk at the United States Attorney’s office; and (2) 14 | send a copy of the summons and complaint by registered or certified mail to the Attorney General 15 | in Washington, D.C.; and (3) send a copy of the summons and complaint by registered or certified 16 | mail to the agency defendant.”). 17 Accordingly, IT IS HEREBY ORDERED that plaintiff's April 11, 2020 motion for 18 | default judgment (ECF No. 15) is denied without prejudice to renewal of a motion that cures the 19 | deficiencies noted above.! 20 | Dated: February 19, 2021 22 3 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 24 25 | DLB:6 DB\orders\orders.civil\figueroa3275.mdj.den.ord 27 ' Plaintiff is advised that, out of an abundance of caution, it is the undersigned’s practice to request that a plaintiff seeking default judgment serve all defendants with notice of a motion for 28 | default judgment.