(HC) Rouser v. State of California, No. 2:2010cv02437 - Document 19 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 6/28/11 RECOMMENDING that 17 MOTION for DEFAULT JUDGMENT be denied. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 20 days. (Dillon, M)
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(HC) Rouser v. State of California Doc. 19 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 WILLIAM ROUSER, Petitioner, 11 12 No. 2:10-cv-2437 MCE JFM (HC) vs. 13 STATE OF CALIFORNIA, 14 Respondent. FINDINGS & RECOMMENDATIONS / 15 Petitioner is a state prisoner proceeding pro se in this action filed pursuant to 28 16 17 U.S.C. § 2254. On May 18, 2011, petitioner filed a motion for default judgment. Petitioner 18 contends respondent failed to timely respond to this court’s March 25, 2011 order directing 19 respondent to file a response within forty-five days of the date of the order. Respondent filed a 20 motion to dismiss on May 11, 2011, two days beyond the deadline. Federal Rules of Civil Procedure 55 governs the entry of default by the clerk and 21 22 the subsequent entry of default judgment by either the clerk or the district court. In pertinent 23 part, Rule 55 provides: 25 (a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default. 26 ///// 24 1 Dockets.Justia.com 1 2 3 4 5 (b) Entering a Default Judgment. (1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk—on the plaintiff's request, with an affidavit showing the amount due—must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person. (2) By the Court. In all other cases, the party must apply to the court for a default judgment .... 6 The Ninth Circuit Court of Appeals has stated that Rule 55 requires a “two-step 7 process,” consisting of: (1) seeking the clerk’s entry of default, and (2) filing a motion for entry 8 of default judgment. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir .1986) (“Eitel apparently 9 fails to understand the two-step process required by Rule 55.”); Symantec Corp. v. Global 10 Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009) (noting “the two-step process of ‘Entering a 11 Default’ and ‘Entering a Default Judgment’ ”). 12 In light of the requirement to obtain entry of default before seeking default 13 judgment, courts deny motions for default judgment where default has not been previously 14 entered. See, e.g., Marty v. Green, No. 2:10-cv-1823-KJM-KJN, 2011 WL 320303, at *3 (E.D. 15 Cal. Jan. 28, 2011) (“Plaintiff's motion for default judgment is denied because plaintiff did not 16 follow the procedural steps required to properly file a motion for default judgment. Specifically, 17 plaintiff failed to seek a clerk’s entry of default from the Clerk of Court prior to filing his motion 18 for default judgment.”); Norman v. Small, No. 09-cv-2233-WQH-NLS, 2010 WL 5173683, at *2 19 (S.D. Cal. Dec. 14, 2010) (denying plaintiff's motion for default judgment because “the clerk has 20 not entered default”); Bach v. Mason, 1901 F.R.D. 567, 574 (D. Idaho 1999) (“Plaintiffs have 21 improperly asked this court to enter a default judgment without first obtaining an entry of default 22 by the clerk. Since plaintiffs’ motion for entry of default judgment is improper, it is denied.”). 23 In this case, petitioner has not sought entry of default against respondent, and the 24 Clerk of Court has not entered default against the respondent in this case. Therefore, petitioner 25 has not complied with the requirements of Rule 55. Without first obtaining an entry of default 26 2 1 against the respondent, petitioner’s motion for default judgment is improperly before this court. 2 See Bach, 190 F.R.D. at 574. Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s motion for 3 4 default judgment be denied. 5 These findings and recommendations are submitted to the United States District 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 7 days after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 10 failure to file objections within the specified time may waive the right to appeal the District 11 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 DATED: June 28, 2011. 13 14 15 16 /014;rous2437.mdj 17 18 19 20 21 22 23 24 25 26 3
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