(PS) Rhuma v. State of Libya ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 TAHER RHUMA, et al., No. 2:20-cv-02366 DAD AC PS 11 Plaintiffs, 12 v. ORDER TO SHOW CAUSE 13 STATE OF LIBYA, 14 Defendant. 15 16 Plaintiffs, appearing in pro se, filed documentation regarding service of defendant on July 17 25, 2022, indicating that service documents were delivered via DHL on June 19, 2022. ECF No. 18 27 at 2. Defendant has not answered or appeared, even though over 135 days have passed since 19 service. Plaintiffs have not taken any action. 20 Plaintiffs are ordered to show cause within 30 days why this case should not be dismissed 21 for failure to prosecute. If plaintiffs request entry of default it will discharge this order. Plaintiffs 22 are informed below of the procedures to be followed in pursuing a default judgment. 23 Procedure for Default and Default Judgment 24 A party seeking default judgment must first request entry of default from the Clerk’s 25 Office under Fed. R. Civ. P. 55(a). The court Clerk determines whether entry is appropriate by 26 reviewing the requesting party’s request and accompanying documentation. If the Clerk finds 27 that the facts establish a failure to plead or otherwise defend, the Clerk will enter a default 28 //// 1 without any need for a judicial order. A default entry is not a judgment, but it is a necessary 2 precondition for judgment. 3 If the plaintiff is granted entry of default by the Clerk of the Court, plaintiff may apply to 4 the court to obtain a default judgement. Fed. R. Civ. Proc. 55(b)(2). Plaintiff must file a motion 5 for entry of default judgment and notice the motion for hearing before the undersigned pursuant 6 to Local Rule 230. The motion may be made any time after entry of defendant’s default. 7 However, “[a] defendant’s default does not automatically entitle the plaintiff to a court- 8 ordered judgment.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) 9 (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)); see Fed. R. Civ. P. 55(b) 10 (governing the entry of default judgments). Instead, the decision to grant or deny an application 11 for default judgment lies within the district court’s sound discretion. Aldabe v. Aldabe, 616 F.2d 12 1089, 1092 (9th Cir. 1980). In making this determination, the court will consider the following 13 factors: 14 (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) 15 the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to 16 excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 17 18 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Default judgments are ordinarily 19 disfavored. Id. at 1472. 20 As a general rule, once default is entered by the Clerk, well-pleaded factual allegations in 21 the operative complaint are taken as true, except for those allegations relating to damages. 22 TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam). Although 23 well-pleaded allegations in the complaint are admitted by a defendant’s failure to respond, 24 “necessary facts not contained in the pleadings, and claims which are legally insufficient, are not 25 established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992). 26 Any motion for default judgment under Fed. R. Civ. Proc. 55(b)(2) should address the 27 factors set forth in Eitel v. McCool, above. 28 //// 1 Local Rule 110 provides that failure to comply with court orders or the Local Rules “may 2 || be grounds for imposition of any and all sanctions authorized by statute or Rule or within the 3 || inherent power of the Court.” 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Plaintiff is Ordered to Show Cause, in writing within 30 days why this action should not 6 be dismissed for failure to prosecute; 7 2. Plaintiffs’ filing of a request for entry of default will discharge this order; 8 3. If plaintiffs fail to comply with this order, the undersigned will recommend that the case 9 be dismissed without prejudice for failure to prosecute. 10 | DATED: November 2, 2022 ~ 11 Ahan —Chone ALLISON CLAIRE 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28