Lawson v. Youngblood

Filing 68

ORDER DENYING 67 Plaintiff's Motion for Entry of Default Judgment signed by Magistrate Judge Michael J. Seng on 6/4/2013. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD ALAN LAWSON,

CASE No. 1:09-cv-00992-LJO-MJS (PC)
ORDER DENYING PLAINTIFF’S
MOTION FOR ENTRY OF DEFAULT
JUDGMENT

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Plaintiff,
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vs.

(ECF No. 67)

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DONALD YOUNGBLOOD, et al.,

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Defendants.
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_____________________________/

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I.

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PROCEDURAL HISTORY
Plaintiff Richard Alan Lawson is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action filed on June 8, 2009 pursuant to 42 U.S.C. §

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1983. (ECF No. 1.)

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The matter proceeds on Plaintiff’s Second Amended Complaint (ECF No. 21) of

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inadequate medical care by Defendants Laird, Chang, Sawaske, Embrey, and

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Clemente, and excessive force by Defendant Laird. (ECF No. 22.) Defendants Laird,

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Sawaske and Embrey filed an Answer on August 1, 2012. (ECF No. 29.) Defendant

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Chang filed an Answer March 28, 2013. (ECF No. 57.)

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The Marshal was unable to locate Defendant Clemente, Nurse at Kern County

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Jail, and returned the summons unexecuted. (ECF No. 38.) The Marshal was ordered

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to make a second attempt, (ECF No. 53) but has not yet made a return of service

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thereon.

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Pending before the Court is Plaintiff’s Motion for entry of default judgment

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against Defendant Clemente for failure to respond to the pleading. (ECF No. 67.)

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Defendants Laird, Chang, Sawaske and Embrey object to the Motion to the extent it

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seeks entry of their default. (ECF No. 66.)

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II.

LEGAL STANDARD
Rule 55(a) of the Federal Rules of Civil Procedure requires that the Clerk of the

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Court enter default “when a party against whom a judgment for affirmative relief is

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sought has failed to plead or otherwise defend, and that failure is shown by affidavit or

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otherwise.” Fed. R. Civ. P. 55(a). Rule 55(b)(2) provides that the Court may grant a

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default judgment after default has been entered by the Clerk of the Court.
When considering whether to enter a default judgment, the court should

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consider “(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's

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substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake

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in the action, (5) the possibility of a dispute concerning material facts, (6) whether the

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default was due to excusable neglect, and (7) the strong policy underlying the Federal

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Rules of Civil Procedure favoring decisions on the merits.” Eitel v. McCool, 782 F.2d

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1470, 1471–72 (9th Cir. 1986); see also Al– Torki v. Kaempen, 78 F.3d 1381, 1384

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(9th Cir. 1996); Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir.

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1989). “[T]he general rule disfavors default judgments. Cases should be decided upon

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their merits whenever reasonably possible.” Eitel, 782 F.2d at 1472.

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III.

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ANALYSIS
Plaintiff’s Motion, directed against Defendant Clemente, appears to seek relief

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against all listed Defendants. The Motion shall be denied without prejudice as to

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Defendant Clemente. The Motion shall be denied with prejudice as to remaining

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Defendants Laird, Chang, Sawaske and Embrey.

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A.

Defendant Clemente

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Plaintiff is not entitled to entry of default against Defendant Clemente because

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he has not demonstrated that that Defendant has been served with process. Absent

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service, the Court has no jurisdiction over a defendant. Action Embroidery Corp. v.

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Atlantic Embroidery, Inc., 368 F.3d 1174, 1177 (9th Cir. 2004); see also Harry and

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David v. J & P Acquisition, Inc., 865 F.Supp.2d 494, 500 (D. Del. 2011) (absent proper

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service a defendant is not legally called to answer and entry of default is void.)

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In fact it appears the U.S. Marshal has not legally effected service of process

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upon Defendant Clemente and thereby triggered that Defendant's legal obligation to

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respond to Plaintiff's Second Amended Complaint. Fed. R. Civ. P. 4(d)(e); Fed. R. Civ.

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P. 55(a).

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Plaintiff's instant motion is clearly premature as to Defendant Clemente. Until

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and unless Defendant Clemente is in default, Plaintiff may not seek entry of his/her

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default and judgment thereon.

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B.

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Plaintiff is not entitled to entry of default against Defendants Laird, Chang,

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Sawaske and Embrey as they have responded to the Second Amended Complaint are

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not in default. Their objection to the instant Motion, to the extent it seeks entry of

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default against them, is sustained.

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IV.

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Defendants Laird, Chang, Sawaske and Embrey

ORDER
Accordingly, for the reasons stated above, it is HEREBY ORDERED THAT

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Plaintiff's Motion for entry of default (ECF No. 67) is DENIED without prejudice as to

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Defendant Clemente, and DENIED with prejudice as to Defendants Laird, Chang,

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Sawaske and Embrey.

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IT IS SO ORDERED.

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Dated:
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June 4, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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