Gray v. Johnson et al

Filing 298

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANA GRAY, 12 No. 1:13-cv-01473-DAD-GSA Plaintiff, 13 v. 14 ROMERO, et al., 15 16 17 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 18 civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 5, 2017, plaintiff filed a motion seeking a default judgment against defendant 21 Rebel. (Doc. No. 198.) On October 20, 2017, the assigned magistrate judge issued findings and 22 recommendations, recommending that plaintiff’s motion be denied. (Doc. No. 283.) The parties 23 were provided fourteen days in which to file objections to those findings and recommendations. 24 (Id.) Plaintiff did so on November 3, 2017. (Doc. No. 286.) On November 8, 2017, defendant 25 Rebel filed a response to those objections. (Doc. No. 289.) 26 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 27 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 28 court finds the findings and recommendations to be supported by the record and proper analysis. 1 1 The court has reviewed plaintiff’s objections and finds them to be unpersuasive. Plaintiff 2 argues that she is entitled to a default judgment because defendant Rebel failed to timely answer 3 the complaint. The court finds that plaintiff’s motion is deficient both procedurally and 4 substantively. Procedurally, obtaining a default judgment requires adherence to a two-step 5 process. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). A party seeking a default 6 judgment must first receive an entry of default from the clerk of court. Id. (citing Fed. R. Civ. P. 7 55(a)). Second, the party must move the court for default judgment pursuant to Rule 55(b). Id.; 8 Lack v. Rustick, No. CV 06-2204-PHX-MHM, 2008 WL 268712, at *1 (D. Ariz. Jan. 28, 2008). 9 Here, there is no evidence that plaintiff has ever sought or obtained an entry of default from the 10 Clerk of Court. There is therefore no basis upon which to grant plaintiff’s motion for default 11 judgment. 12 In addition to not complying with the requirements of Rule 55, plaintiff’s motion for a 13 default judgment lacks merit. As noted by the assigned magistrate judge, plaintiff would be 14 entitled to a default judgment only if the defendant failed “to plead or otherwise defend.” Fed. R. 15 Civ. P. 55. Here, defendant filed a motion to dismiss pursuant to Rule 12(b)(6), thereby 16 defending himself for purposes of Rule 55. (Doc. No. 57.) Moreover, contrary to plaintiff’s 17 argument, an examination of the docket reveals that defendant’s motion to dismiss was timely 18 filed. (See Doc. No. 52) (setting a deadline of April 29, 2016 for which to file an answer or 19 motion under Rule 12). 20 Next, plaintiff argues that a default judgment against defendant Rebel is appropriate 21 because defendant “proceed[ed] into [d]iscovery without answering the complaint.” (Doc. No. 22 286 at 3.) By doing so, plaintiff contends that defendant Rebel “violated this Court’s procedures . 23 . . [as well as] the Fed. R. Civ. P.” (Id.) However, the Federal Rules of Civil Procedure “do not 24 provide for automatic or blanket stays of discovery when a potentially dispositive motion is 25 pending.” Edwards v. Nevada, No. 2:17-cv-00201-JAD-VCF, 2017 WL 1822572, at *1 (D. Nev. 26 May 5, 2017) (citing Skellerup Indus. Ltd. v. City of Los Angeles, 163 F.R.D. 598, 600–01 (C.D. 27 Cal. 1995)). Plaintiff has not pointed to any rule that defendant Rebel violated by commencing 28 discovery while the motion to dismiss was pending before the court. Accordingly, the court finds 2 1 no basis upon which to disagree with the recommendation set forth in the findings and 2 recommendations. 3 For all of these reasons, 4 1. 5 6 adopted in full; 2. 7 8 9 10 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 3. 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 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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