Sousa v. Wegman et al

Filing 17

ORDER DENYING Without Prejudice Plaintiff's Request for Entry of Default 16 , signed by Magistrate Judge Michael J. Seng on 12/18/12. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JUAN SOUSA,

CASE No. 1:11-cv-01754-MJS (PC)
ORDER DENYING WITHOUT PREJUDICE
PLAINTIFF’S REQUEST FOR ENTRY OF
DEFAULT

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Plaintiff,
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v.

(ECF No. 16)

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C. WEGMAN, et al.,

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Defendants.
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/
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I.

PROCEDURAL HISTORY

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Plaintiff Juan Sousa is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action filed October 21, 2011 pursuant to 42 U.S.C. § 1983. (ECF No.

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1.) Plaintiff consented to Magistrate Judge jurisdiction for all purposes and proceedings.

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(Consent to Magistrate, ECF No. 5.)

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This matter proceeds on Plaintiff’s Second Amended Complaint (Sec. Am.

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Compl., ECF No. 12) alleging Defendant Wegman violated Plaintiff’s First Amendment

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right to free exercise of his religion. (Order Finding Cognizable Claim, ECF No. 13.)

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On October 16, 2012, the Court issued its order directing service upon

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Defendant Wegman by the U.S. Marshal and ordered that service be completed by

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February 18, 2013. (Order re Service, ECF No. 15.)

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Pending before the Court is Plaintiff’s request and declaration for entry of default.

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(Req. Entry Default, ECF No. 16.)

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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 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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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.)

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There is no evidence that the U.S. Marshal has legally effected service of

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process upon Defendant Wegman and thereby triggered 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). The Court’s October 16, 2012 order for Marshal’s service does not constitute

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service of process, but rather directs the U.S. Marshal to effectuate service prior to the

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applicable service deadline of February 18, 2013.1
Plaintiff’s instant motion is 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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IV.

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

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ORDER

Plaintiff’s motion for entry of default (ECF No. 16) is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:
12eob4

December 18, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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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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