Cahill v. Bank of America, NA

Filing 27

ORDER denying 20 REQUEST for hearing signed by Magistrate Judge John F. Moulds on 5/7/12. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DIANE CAHILL,
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Plaintiff,

No. CIV 2:11-cv-1688-MCE-JFM (PS)

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vs.
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BANK OF AMERICA, NA, et al.,
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Defendants.

ORDER

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Plaintiff is proceeding in this action pro se. Pending before the court is plaintiff’s
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April 25, 2012 request for hearing for entry of default judgment against the named defendants.
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Federal Rules of Civil Procedure 55 governs the entry of default by the clerk and
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the subsequent entry of default judgment by either the clerk or the district court. In pertinent
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part, Rule 55 provides:
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(a) Entering a Default. When a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and that failure is shown
by affidavit or otherwise, the clerk must enter the party's default.

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(b) Entering a Default Judgment.
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(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that
can be made certain by computation, the clerk—on the plaintiff's request,
with an affidavit showing the amount due—must enter judgment for that
amount and costs against a defendant who has been defaulted for not
appearing and who is neither a minor nor an incompetent person.

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(2) By the Court. In all other cases, the party must apply to the court for a
default judgment ....

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The Ninth Circuit Court of Appeals has stated that Rule 55 requires a “two-step
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process,” consisting of: (1) seeking the clerk’s entry of default, and (2) filing a motion for entry
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of default judgment. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir .1986) (“Eitel apparently
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fails to understand the two-step process required by Rule 55.”); Symantec Corp. v. Global
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Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009) (noting “the two-step process of ‘Entering a
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Default’ and ‘Entering a Default Judgment’ ”).
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In this case, the clerk’s entry of default has not been entered against any of the
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defendants. Because plaintiff has failed to comply with Eitel’s first step, plaintiff’s request for a
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hearing date will be denied as premature.
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Based on the foregoing, IT IS HEREBY ORDERED that plaintiff’s April 25,
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2012 request is denied.
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DATE: May 7, 2012.
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/014;cahi1688.mdj

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