Samuel Leon v. Data Check of America

Filing 10

ORDER REQUIRING PLAINTIFF TO EITHER FILE A MOTION FOR DEFAULT JUDGMENT OR SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE WITHIN THIRTY DAYS. ORDER VACATING OCTOBER 3, 2016 SCHEDULING CONFERENCE. Signed by Magistrate Judge Stanley A. Boone on 9/21/2016. (Hernandez, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SAMUEL LEON,

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Case No. 1:16-cv-00744-LJO-SAB
Plaintiff,

v.
DATA CHECK OF AMERICA,
Defendant.

ORDER REQUIRING PLAINTIFF TO EITHER
FILE A MOTION FOR DEFAULT JUDGMENT
OR SHOW CAUSE WHY THIS ACTION
SHOULD NOT BE DISMISSED FOR FAILURE
TO PROSECUTE WITHIN THIRTY DAYS
ORDER VACATING OCTOBER 3, 2016
SCHEDULING CONFERENCE

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Plaintiff Samuel Leon filed this action on May 27, 2016. (ECF No. 1.) Plaintiff served

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the complaint on June 28, 2016. (ECF No. 5.) When Defendant failed to file an answer, Plaintiff

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requested entry of default and default was entered on July 27, 2016. (ECF Nos. 8, 9.)

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Pursuant to Federal Rules of Civil Procedure 55, obtaining a default judgment is a two

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step process. Yue v. Storage Technology Corp., No. 3:07-cv-05850, 2008 WL 361142, *2

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(N.D.Cal. Feb, 11, 2008). Entry of default is appropriate as to any party against whom a

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judgment for affirmative relief is sought that has failed to plead or otherwise defend as provided

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by the Federal Rules of Civil Procedure and where that fact is made to appear by affidavit or

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otherwise. Fed. R. Civ. P. 55(a). After entry of default, the plaintiff can seek entry of default

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judgment. Fed. R. Civ. P. 55(b)(1) and (2). “Default judgments are generally disfavored, and

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whenever it is reasonably possible, cases should be decided upon their merits.” In re Hammer,
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940 F.2d 524, (9th Cir. 1991) (internal punctuation and citations omitted).

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Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules

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or with any order of the Court may be grounds for imposition by the Court of any and all

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sanctions . . . within the inherent power of the Court.” The Court has the inherent power to

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control its docket and may, in the exercise of that power, impose sanctions where appropriate,

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including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir.

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2000).

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Within thirty days from the date of service of this order, Plaintiff shall either file a motion

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for default judgment or show cause why this action should not be dismissed for Plaintiff’s failure

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to prosecute.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Within thirty days from the date of service of this order, Plaintiff shall file a

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motion for default judgment or a written response to the Court, showing cause

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witin 30 days from service of this order why this action should not be dismissed

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for Plaintiff’s failure to prosecute;

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2.

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Plaintiff's failure to comply with this order shall result in a recommendation that
this action be dismissed; and

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3.

The October 3, 2016 scheduling conference is vacated.

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IT IS SO ORDERED.
Dated:

September 21, 2016
UNITED STATES MAGISTRATE JUDGE

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