(PC) Robertson v. Krause ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WAYNE JEROME ROBERTSON, No. 2:17-cv-1426 WBS DB P 12 Plaintiff, 13 v. ORDER 14 T. KRAUSE, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding with a civil rights action under 42 U.S.C. §1983. 18 Before the court is plaintiff’s motion for default judgement (ECF No. 42) and defendant’s 19 opposition to this motion (ECF No. 43). 20 Plaintiff filed a motion for default judgement on September 30, 2021. (ECF No. 42.) 21 Rule 55 of the Federal Rules of Civil Procedure provides the procedure by which a party can seek 22 default judgement against another party. Prior to a default judgement being entered against a 23 party, the clerk of the court must first enter the default of the party against whom a judgement is 24 sought. See Fed. R. Civ. P. 55(a); Symantec Corp. v. Global Impact, Inc., 559 F.3d 922, 293 (9th 25 Cir. 2009) (identifying the process of obtaining a default judgement as a “two-step process” 26 requiring both the entry of default and the entry of default judgement). 27 Plaintiff has not requested that the clerk of court enter the default of the defendant. As 28 such, the clerk not entered default by the defendant. The defendant’s default must be entered 1 | prior to a motion for default judgement. See Fed. R. Civ. P. 55(a)-(b). Thus, plaintiff’s motion 2 | for default judgment is premature. Plaintiff’s motion for default judgement will be denied 3 | without prejudice to it renewal. 4 On October 1, 2021, an order was signed by the undersigned lifting the stay in this action 5 || and ordering defendant to file a responsive pleading within thirty days. (ECF No. 45.) This order 6 | was entered on October 4, 2021. (Id.) Defendant filed an answer to the plaintiff’s complaint on 7 || October 1, 2021. (ECF No. 43.) Thus, defendant has satisfied the court’s order despite that order 8 || being entered after defendant had filed aresponsive pleading with the court. The undersigned 9 | will issue a discovery and scheduling order by separate order. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Plaintiff’s motion for default judgement (ECF No. 42) is denied without prejudice to 12 its renewal; and 13 2. Defendant has filed answer and the court will issue a discovery and scheduling order 14 separately. 15 | Dated: October 4, 2021 16 17 18 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 DB:14 25 || DB/DB Prisoner InbowCivil Rights/R/robel 426 default 26 27 28