(PS) Malik v. Wright ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GHAUS MALIK, No. 2:24-cv-00692 MCE AC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 ROBERT W. WRIGHT, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding pro se, has filed a motion for default judgment. ECF No. 13. 18 The motion is procedurally improper because there has been no entry of default by the Clerk, 19 pursuant to Fed. R. Civ. P. 55(a). Also, the court notes that all defendants have appeared and 20 their time to file an answer or motion responsive to the complaint has not yet elapsed. Thus, the 21 motion for default judgment must be denied. Plaintiff is informed below of the procedures to be 22 followed in pursuing a default judgment. 23 I. Default Judgment Procedure 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 without any need for a judicial order. A default entry is not a judgment, but it is a necessary 1 precondition for judgment. 2 If the plaintiff is granted entry of default by the Clerk of the Court, plaintiff may apply to 3 the court to obtain a default judgement. Fed. R. Civ. Proc. 55(b)(2). Plaintiff must file a motion 4 for entry of default judgment and notice the motion for hearing before the undersigned pursuant 5 to Local Rule 230. The motion may be made any time after entry of defendant’s default. 6 However, “[a] defendant’s default does not automatically entitle the plaintiff to a court- 7 ordered judgment.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) 8 (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)); see Fed. R. Civ. P. 55(b) 9 (governing the entry of default judgments). Instead, the decision to grant or deny an application 10 for default judgment lies within the district court’s sound discretion. Aldabe v. Aldabe, 616 F.2d 11 1089, 1092 (9th Cir. 1980). In making this determination, the court will consider the following 12 factors: 13 (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) 14 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 15 excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 16 17 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Default judgments are ordinarily 18 disfavored. Id. at 1472. 19 As a general rule, once default is entered by the Clerk, well-pleaded factual allegations in 20 the operative complaint are taken as true, except for those allegations relating to damages. 21 TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam). Although 22 well-pleaded allegations in the complaint are admitted by a defendant’s failure to respond, 23 “necessary facts not contained in the pleadings, and claims which are legally insufficient, are not 24 established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992). 25 Any motion for default judgment under Fed. R. Civ. Proc. 55(b)(2) should address the factors set 26 forth in Eitel v. McCool, above. 27 //// 28 //// 1 Il. Discussion 2 Here, default judgment cannot be entered because the Clerk has not made an entry of 3 || default. Further, entry of default would not be appropriate because the defendants have appeared 4 | and their time to respond to the complaint has not yet elapsed. See ECF No. 12. Accordingly, 5 || they have not defaulted. For these reasons, the motion must be denied. 6 II]. Recommendation 7 For the reasons set forth above, IT IS HEREBY RECOMMENDED that plaintiff’s motion 8 | for default judgment (ECF No. 13) be DENIED. 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 || objections with the court and serve a copy on all parties. Such a document should be captioned 13 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 || objections shall be served and filed within fourteen days after service of the objections. The 15 || parties are advised that failure to file objections within the specified time may waive the right to 16 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 17 | DATED: May 20, 2024 ~ Ig ththienr—Chnp—e_ ALLISON CLAIRE 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28