Watterson v. Fritcher

Filing 12

ORDER Denying Plaintiff's 8 Application for Entry of Default and Denying as Moot Defendant's Motion to Set Aside Default 9 , signed by District Judge Dale A. Drozd on 10/24/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEONARD WATTERSON,

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No. 1:17-CV-01020-DAD-JLT

Plaintiff,
v.
JULIE FRITCHER AND DOES 1-10,

ORDER DENYING PLAINTIFF’S
APPLICATION FOR ENTRY OF DEFAULT
AND DENYING AS MOOT DEFENDANT’S
MOTION TO SET ASIDE DEFAULT

Defendants.
(Doc. Nos. 8, 9)
On September 9, 2017, plaintiff in this matter filed a document styled as an “Application

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for Entry of Default.” (Doc. No. 8.) Upon review of the filing it is apparent plaintiff specifically

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seeks entry of a default judgment under Federal Rule of Civil Procedure 55(b)(2). (Id. at 1.)

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However, no default has been entered in this case by the Clerk of the Court, which is a necessary

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step prior to the court entertaining a motion for a default judgment. See Brooks v. United States,

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29 F. Supp. 2d 613, 618 (N.D. Cal. 1998) (“As default has not been entered against [the

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defendant], the entry of default judgment would be inappropriate. The entry of default judgment

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is a two-part process; default judgment may be entered only upon the entry of default by the Clerk

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of the Court.”); see also Smith v. Woodward, No. C 06-0103 JF(PR), 2008 WL 2477382, at *1

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(N.D. Cal. June 18, 2008); ADP, Inc. v. Willits Motors of Susanville, No. CIV S-07-2439 LEW

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DAD, 2008 WL 480009, at *1 (E.D. Cal. Feb. 19, 2008) (“Put another way, ‘an entry of default is

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a prerequisite to a default judgment under Rule 55(b).’”) (quoting Lee v. Bhd. of Maint. of Way
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Emps., 139 F.R.D. 376, 380 (D. Minn. 1991)). Plaintiff’s application for entry of default

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judgment (Doc. No. 8) is therefore denied as premature. Moreover, defendant’s motion to set

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aside the default, filed September 27, 2017 (Doc. No. 9), is denied as moot, as no default has yet

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been entered that must be set aside.

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IT IS SO ORDERED.

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Dated:

October 24, 2017
UNITED STATES DISTRICT JUDGE

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