Gray v. Johnson et al
Filing
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ORDER Adopting 283 Findings and Recommendations and Denying 198 Motion for Default Judgment, signed by District Judge Dale A. Drozd on 12/21/17. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DANA GRAY,
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No. 1:13-cv-01473-DAD-GSA
Plaintiff,
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v.
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ROMERO, et al.,
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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
PLAINTIFF’S MOTION FOR DEFAULT
JUDGMENT
Defendants.
(Doc. Nos. 198, 283)
Plaintiff Dana Gray is a state prisoner proceeding pro se and in forma pauperis with this
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civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United
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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On April 5, 2017, plaintiff filed a motion seeking a default judgment against defendant
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Rebel. (Doc. No. 198.) On October 20, 2017, the assigned magistrate judge issued findings and
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recommendations, recommending that plaintiff’s motion be denied. (Doc. No. 283.) The parties
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were provided fourteen days in which to file objections to those findings and recommendations.
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(Id.) Plaintiff did so on November 3, 2017. (Doc. No. 286.) On November 8, 2017, defendant
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Rebel filed a response to those objections. (Doc. No. 289.)
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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this
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court has conducted a de novo review of this case. Having carefully reviewed the entire file, the
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court finds the findings and recommendations to be supported by the record and proper analysis.
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The court has reviewed plaintiff’s objections and finds them to be unpersuasive. Plaintiff
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argues that she is entitled to a default judgment because defendant Rebel failed to timely answer
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the complaint. The court finds that plaintiff’s motion is deficient both procedurally and
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substantively. Procedurally, obtaining a default judgment requires adherence to a two-step
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process. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). A party seeking a default
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judgment must first receive an entry of default from the clerk of court. Id. (citing Fed. R. Civ. P.
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55(a)). Second, the party must move the court for default judgment pursuant to Rule 55(b). Id.;
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Lack v. Rustick, No. CV 06-2204-PHX-MHM, 2008 WL 268712, at *1 (D. Ariz. Jan. 28, 2008).
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Here, there is no evidence that plaintiff has ever sought or obtained an entry of default from the
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Clerk of Court. There is therefore no basis upon which to grant plaintiff’s motion for default
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judgment.
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In addition to not complying with the requirements of Rule 55, plaintiff’s motion for a
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default judgment lacks merit. As noted by the assigned magistrate judge, plaintiff would be
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entitled to a default judgment only if the defendant failed “to plead or otherwise defend.” Fed. R.
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Civ. P. 55. Here, defendant filed a motion to dismiss pursuant to Rule 12(b)(6), thereby
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defending himself for purposes of Rule 55. (Doc. No. 57.) Moreover, contrary to plaintiff’s
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argument, an examination of the docket reveals that defendant’s motion to dismiss was timely
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filed. (See Doc. No. 52) (setting a deadline of April 29, 2016 for which to file an answer or
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motion under Rule 12).
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Next, plaintiff argues that a default judgment against defendant Rebel is appropriate
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because defendant “proceed[ed] into [d]iscovery without answering the complaint.” (Doc. No.
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286 at 3.) By doing so, plaintiff contends that defendant Rebel “violated this Court’s procedures .
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. . [as well as] the Fed. R. Civ. P.” (Id.) However, the Federal Rules of Civil Procedure “do not
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provide for automatic or blanket stays of discovery when a potentially dispositive motion is
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pending.” Edwards v. Nevada, No. 2:17-cv-00201-JAD-VCF, 2017 WL 1822572, at *1 (D. Nev.
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May 5, 2017) (citing Skellerup Indus. Ltd. v. City of Los Angeles, 163 F.R.D. 598, 600–01 (C.D.
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Cal. 1995)). Plaintiff has not pointed to any rule that defendant Rebel violated by commencing
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discovery while the motion to dismiss was pending before the court. Accordingly, the court finds
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no basis upon which to disagree with the recommendation set forth in the findings and
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recommendations.
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For all of these reasons,
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adopted in full;
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The findings and recommendations dated October 20, 2017 (Doc. No. 283) are
Plaintiff’s motion for default judgment against defendant Rebel (Doc. No. 198) is
denied; and
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This case is referred back to the assigned magistrate judge for further proceedings.
IT IS SO ORDERED.
Dated:
December 21, 2017
UNITED STATES DISTRICT JUDGE
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