Free Order on Motion for Default Judgment - District Court of California - California

Case 4:07-cv-05040-SBA

Document 14

Filed 04/15/2008

Page 1 of 1

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. RUSTY ALAN SIMS, Plaintiff,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 07-05040 SBA (PR) ORDER DENYING REQUEST FOR DEFAULT JUDGMENT (Docket no. 11) /

CALIFORNIA DEPT. OF CORRECTIONS, et al., Defendants.

Plaintiff has filed a document entitled "Notice of Motion for Request for Default Judgment" (docket no. 11). Under Rule 55 of the Federal Rules of Civil Procedure, judgment by default may be entered "[w]hen a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules." Fed. R. Civ. P. 55(a). In the present case, Defendants have not failed to defend this action, and the facts alleged by Plaintiff do not entitle him to an entry of default against them. Furthermore, Rule 55(b) contemplates that a default judgment may be sought after default has been entered against a defendant. See also New York Life Ins. Co. v. Brown, 84 F.3d 137 (5th Cir. 1996) ("After defendant's default has been entered, plaintiff may apply for a judgment based on such default. This is a default judgment."); Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986). Here, Plaintiff has moved for a default judgment prior to seeking entry of default. Therefore, Plaintiff's request is premature. However, as mentioned above, Plaintiff's request is without merit because he is not entitled to an entry of default against Defendants. Accordingly, Plaintiff's request for default judgment (docket no. 11) is DENIED. This Order terminates Docket no. 11. IT IS SO ORDERED. DATED: April 15, 2008 SAUNDRA BROWN ARMSTRONG United States District Judge