Duran v. City of Porterville ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 JOHN DURAN, et al., Case No. 1:22-cv-00614-DAD-SAB 11 Plaintiffs, ORDER DENYING PLAINTIFFS’ 12 REQUEST FOR ENTRY OF DEFAULT v. AND DIRECTING CLERK OF COURT TO 13 ABSTAIN FROM ENTERING DEFAULT CITY OF PORTERVILLE, et al., 14 (ECF No. 11) Defendants. 15 16 Plaintiffs, proceeding pro se, filed this action on May 23, 2022. (ECF No. 1.) 17 Defendants were served on May 31, 2022. (ECF No. 4.) On June 21, 2022, all Defendants 18 joined in and filed a motion to dismiss this action. (ECF No. 5.) On June 27, 2022, Plaintiffs 19 filed a request for entry of default, proffering the Defendants have failed to plead or otherwise 20 defend in this action. (ECF No. 11.) 21 Rule 55 of the Federal Rules of Civil Procedure provides that “[w]hen a party against 22 whom a judgment or affirmative relief is sought has failed to plead or otherwise defend, and that 23 failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ. 24 P. 55(b)(1). Before a default is entered, the “court clerk must be satisfied from Plaintiff’[s] 25 request and accompanying documentation that (1) defendant has been served with the summons 26 (or has agreed to waive service); (2) the time allowed by law for responding has expired; (3) 27 defendant has failed to file a pleading or motion permitted by law; and (4) defendant is neither a minor nor an incompetent person.” Shapour v. California, Dep’t of Transp., No. 1:13-CV-1682 1 | AWI-BAM, 2013 WL 6797470, at *1 CE.D. Cal. Dec. 19, 2013) (citations omitted). 2 Defendants have filed a motion to dismiss that is currently pending before the District 3 | Judge, and therefore, Plaintiff's request for entry of default shall be denied because Defendants 4 | have not failed to plead or otherwise defend in this action. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiffs’ request for entry of default ECF No. 11) is DENIED; and 7 2. The Clerk of the Court is DIRECTED to ABSTAIN from entering default against 8 Defendants pursuant to Plaintiffs’ request filed June 27, 2022 (ECF No. 11). 9 10 IT IS SO ORDERED. DAM Le 11 | Dated: _June 30, 2022 __ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28