Johnson v. Cate et al

Filing 22

ORDER DENYING Without Prejudice Plaintiff's Request for Entry of Default and Default Judgment 20 , 21 , signed by Magistrate Judge Michael J. Seng on 11/30/12. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GARRISON S. JOHNSON,

CASE No. 1:10-cv-02348-LJO-MJS (PC)

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Plaintiff,

ORDER DENYING WITHOUT PREJUDICE
PLAINTIFF’S REQUEST FOR ENTRY OF
DEFAULT AND DEFAULT JUDGMENT

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v.
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(ECF Nos. 20, 21)
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CATE, et al.,

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Defendants.
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I.

PROCEDURAL HISTORY
Plaintiff Garrison S. Johnson is a state prisoner proceeding pro se in this civil

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rights action filed December 16, 2010, pursuant to 42 U.S.C. § 1983. (Compl., ECF No.

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1.) Plaintiff has declined Magistrate Judge jurisdiction. (Decline Magistrate, ECF No. 3.)

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This matter proceeds on Plaintiff’s First Amended Complaint (First Am. Compl.,

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ECF No. 8) against Defendant Doran for violation of Plaintiff’s rights under the

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Fourteenth Amendment Equal Protection Clause. (Order Requiring Plaintiff Amend or

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Notify, ECF No. 9; Notice, ECF No. 10.)

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On July 6, 2012, the Court issued its order instructing Plaintiff, who is not
proceeding in forma pauperis, on service of process and directing that service be

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completed on Defendant Doran (the only remaining Defendant) by November 7, 2012.1

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(Order Instructing, ECF No. 13.) On November 14, 2012, the Court denied Plaintiff’s

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motion for permission to proceed in forma pauperis for service of summons and

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complaint by the United States Marshall, but extended the service deadline to February

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6, 2013 and ordered the Court Clerk to re-issue service instructions and documents.

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(Order Den. Mot. for IFP re Service, ECF 19.)
Pending before the Court are Plaintiff’s requests for entry of default (Req. Entry

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Default, ECF No. 20), and default judgment against Defendant Doran. (Req. Entry

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Default J., ECF No. 21.)

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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.

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When considering whether to enter a default judgment, the court should consider

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“(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive

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

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(5) the possibility of a dispute concerning material facts, (6) whether the default was

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due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil

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Procedure favoring decisions on the merits.” Eitel v. McCool, 782 F.2d 1470, 1471–72

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(9th Cir. 1986; see also Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996); Alan

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Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1989). “[T]he general

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rule disfavors default judgments. Cases should be decided upon their merits whenever

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

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Plaintiff has paid the filing fee in full for initiating this action. Receipt No. CAE100013403.

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III.

ANALYSIS

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Plaintiff is not entitled to entry of default because he has not demonstrated that

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the Defendant has been effectively served with process. Absent service, the Court has

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no jurisdiction over a defendant. Action Embroidery Corp. v. Atlantic Embroidery, Inc.,

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368 F.3d 1174, 1177 (9th Cir. 2004); see also Harry and David v. J & P Acquisition,

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Inc., 865 F.Supp.2d 494, 500 (D. Del. 2011) (absent proper service a defendant is not

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legally called to answer and entry of default is void.)
There is no evidence that Plaintiff legally effected service of process upon

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Defendant Doran and thereby triggered Defendant’s legal obligation to respond to

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Plaintiff’s First Amended Complaint. Fed. R. Civ. P. 4(d), (e); Fed. R. Civ. P. 55(a).

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Plaintiff was previously advised (in the order denying motion to proceed in forma

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pauperis for service) that the proof of service filed on October 12, 2012 (P.O.S., ECF

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No. 15),2 does not demonstrate proper service under federal or state law. Fed. R. Civ.

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P. 4(e); Cal. Civ. Proc. Code §§ 415.10 et seq. & 417.10 et seq.

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Because Plaintiff is not proceeding in forma pauperis, it is his responsibility to

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effect service of the summons and First Amended Complaint on Defendant. Fed. R.

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Civ. P. 4; 28 U.S.C. § 1915(d). The Court has extended the deadline for Plaintiff to

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serve until February 6, 2013 and re-issued service instructions and documents.
Plaintiff’s instant motions are clearly premature. Until and unless Defendant is in

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default, Plaintiff may not seek entry of default and judgment thereon.

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The Court takes judicial notice of its own records. United States v. W ilson, 631 F.2d 118, 119
(9th Cir. 1980).

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IV.

ORDER

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

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Plaintiff’s motions for entry of default and default judgment, (ECF Nos. 20, 21) are

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DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:
ci4d6

November 30, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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