Millner v. Dileo et al

Filing 77

ORDER DENYING 76 Plaintiff's Motion for Entry of Default Judgment, signed by Magistrate Judge Stanley A. Boone on 7/15/2020. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES MILLNER,

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Plaintiff,
v.
DR. DILEO, et al.,

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Defendants.

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Case No.: 1:17-cv-00507-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR ENTRY OF DEFAULT JUDGMENT
[ECF No. 76]

Plaintiff James Millner is proceeding pro se in this civil rights action pursuant to 42 U.S.C. §

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1983. Both parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1).

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(ECF No. 55.)

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Currently before the Court is Plaintiff’s motion for entry of default judgment, filed on July 14,

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2020. Plaintiff contends that he filed a motion for summary judgment on May 12, 2020, but

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Defendants have failed to file an opposition or statement of non-opposition. Plaintiff’s motion must

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be denied.

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Because entry of default is a prerequisite to a default judgment, see Fed. R. Civ. P. 55, the

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Court construes Plaintiff’s motion as a motion for entry of default under Rule 55(a). Entry of default is

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appropriate when “party against whom a judgment for affirmative relief is sought has failed to plead or

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otherwise defend, and that failure is shown by affidavit or otherwise.” Fed. R. Civ. P. 55(a).
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Here, Defendants have not failed to plead or otherwise defend this action. In fact, on June 17,

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2020, Defendants timely filed a motion for an extension of time to file a response to Plaintiff’s motion

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for summary judgment, which is currently due on or before July 29, 2020. (ECF No. 71.)

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Accordingly, Plaintiff’s motion for entry of default is DENIED.

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IT IS SO ORDERED.

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Dated:

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July 15, 2020
UNITED STATES MAGISTRATE JUDGE

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