Cranford v. King et al

Filing 10

ORDER DENYING Plaintiff's 9 Motion for Default Judgment, without prejudice, signed by Magistrate Judge Michael J. Seng on 8/23/14. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARCHIE CRANFORD,
Plaintiff,

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v.

Case No. 1:14-cv-01002-MJS (PC)
ORDER DENYING PLAINTIFF’S
MOTION FOR DEFAULT JUDGMENT
(ECF No. 9)

AUDREY KING, et al.,

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Defendants.

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Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil
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rights action pursuant to 42 U.S.C. § 1983. The Complaint was dismissed for failure to

20 state a claim. Plaintiff was granted leave to file an amended complaint by not later than
21 August 18, 2014.
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Before the Court is Plaintiff’s August 11, 2014 motion for entry of default

23 judgment.
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Rule 55(a) of the Federal Rules of Civil Procedure requires that the Clerk of the
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

28 otherwise.” Fed. R. Civ. P. 55(a). Rule 55(b)(2) provides that the Court may grant a
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1 default judgment after default has been entered by the Clerk of the Court.
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Plaintiff’s motion is premature. The Court has not yet found he has asserted a
cognizable claim. If and when that occurs, the Court will order U.S. Marshal’s service of

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the pleading, triggering Defendants obligation to respond. Fed. R. Civ. P. 4(d)(e); Fed.
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R. Civ. P. 55(a). Unless and until Defendants thereby become obligated to respond and

7 fail to do so within the time allowed, Plaintiff may not seek entry of default and judgment
8 thereon.
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Plaintiff is not presently entitled to default judgment because he has not

10 demonstrated that Defendants have been served with process. He cannot so
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demonstrate because the Court has not yet found a cognizable claim and authorized
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service on Defendants. Absent service, the Court has no jurisdiction over Defendants.
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Action Embroidery Corp. v. Atlantic Embroidery, Inc., 368 F.3d 1174, 1177 (9th Cir.
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15 2004); see also Harry and David v. J & P Acquisition, Inc., 865 F.Supp.2d 494, 500 (D.
16 Del. 2011) (absent proper service a defendant is not legally called to answer and entry
17 of default is void).
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Accordingly, for the reasons stated above, it is HEREBY ORDERED that
Plaintiff’s motion for entry of default judgment against Defendants (ECF No. 9) is

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DENIED without prejudice.

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Dated:

August 23, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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