Gilbert v. Thomas ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARREN GILBRT, No. 2:22-cv-01774 AC 12 Plaintiff, 13 v. ORDER TO SHOW CAUSE 14 CHACKO AREECHIRAYIL THOMAS, et al., 15 Defendants. 16 17 Plaintiff filed a complaint October 6, 2022 against two defendants: Chacko Areechirayil 18 Thomas and T&T Investment Group, Inc. ECF No. 1. Neither defendant has appeared and upon 19 plaintiff’s request (ECF No. 7), default was entered against each defendant on December 7, 2022. 20 ECF Nos. 10, 11. Plaintiff has not taken any action in this case since entry of default. 21 The court notes that the Clerk’s entry of default is not an entry of default judgment against 22 the defendants but instead a prerequisite to filing a motion for default judgment. If the plaintiff is 23 granted entry of default by the Clerk of the Court, plaintiff may apply to the court to obtain a 24 default judgement. Fed. R. Civ. Proc. 55(b)(2). Plaintiff must file a motion for entry of default 25 judgment and notice the motion for hearing before the undersigned pursuant to Local Rule 230. 26 Plaintiff should also note that “[a] defendant’s default does not automatically entitle the plaintiff 27 to a court-ordered judgment.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. 28 Cal. 2002) (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)); see Fed. R. Civ. P. 1 |} 55(b) (governing the entry of default judgments). Instead, the decision to grant or deny an 2 || application for default judgment lies within the district court’s sound discretion. Aldabe v. 3 || Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court will 4 | consider the following factors: 5 (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff's substantive claim; (3) the sufficiency of the complaint; 6 (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was 7 due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the 8 merits. 9 || Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). 10 Default judgments are ordinarily disfavored. Id. at 1472. Generally, once default is 11 || entered by the Clerk, well-pleaded factual allegations in the operative complaint are taken as true, 12 || except for those allegations relating to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 13 |} 915, 917-18 (9th Cir. 1987) (per curiam). Although well-pleaded allegations in the complaint are 14 || admitted by a defendant’s failure to respond, “necessary facts not contained in the pleadings, and 15 || claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. 16 | Am., 980 F.2d 1261, 1267 (9th Cir. 1992). 17 Local Rule 110 provides that failure to comply with court orders or the Local Rules “may 18 || be grounds for imposition of any and all sanctions authorized by statute or Rule or within the 19 | inherent power of the Court.” 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Plaintiff is Ordered to Show Cause, in writing no later than March 15, 2023, why this 22 action should not be dismissed for failure to prosecute; 23 2. Plaintiff's filing of a motion for default judgment will be deemed good cause shown and 24 will discharge this order; and 25 3. If plaintiff fails to comply with this order, the case will be dismissed. 26 || DATED: February 27, 2023 Atthtenr— Lane 27 ALLISON CLAIRE 28 UNITED STATES MAGISTRATE JUDGE