Giddens v. City of Suisun et al

Filing 53

ORDER signed by Magistrate Judge Allison Claire on 5/10/16 ORDERING that plaintiff's "Motion for Default Judgment" (ECF No. 52 ) is DENIED without prejudice to its renewal in proper form. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD GIDDENS,

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No. 2:14-cv-0943 TLN AC (PS)

Plaintiff,
v.

ORDER

SUISUN CITY, et al.,
Defendants.

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Plaintiff is proceeding pro se in this case. The case was accordingly referred to the
undersigned by E.D. Cal. R. (“Local Rule”) 302(c)(21).
Plaintiff has filed a document entitled “Motion for Default Judgment.” ECF No. 52. The

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Federal Rules of Civil Procedure provide for the court-ordered entry of a default judgment

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following the entry of a default by the Clerk of the Court. Fed. R. Civ. P. 55(a), (b)(2); see Eitel

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v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) (distinguishing Clerk’s entry of default under

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Rule 55(a) from court’s entry of default judgment under Rule 55(b)).

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Plaintiff’s motion is defective in several ways. First, it was not noticed for hearing as

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required by Local Rule 230(b). Second, it was not preceded by the entry of a “default” by the

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Clerk of the Court pursuant to Fed. R. Civ. P. 55(a). Plaintiff’s submission of his own “Clerk’s

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Certificate / Notation of Default Judgment,” apparently signed by plaintiff, with the notation “s/s

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Marianne Matherly / Clerk of Court,” is not a substitute for the entry of a default by the Clerk.
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See ECF No. 52. Third, the attached Affidavit of Service does not show that defendant was

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served with the Second Amended Complaint – filed June 5, 2015 (ECF No. 39) – the operative

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complaint in this case. To the contrary, plaintiff avers that on December 26, 2014, he served

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defendant with “the within SUMMONS and COMPLAINT.” ECF No. 52-1 at 5. It appears that

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this refers to the First Amended Complaint (ECF No. 23), which was dismissed in part on April

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24, 2015 (ECF No. 37), and then superseded in its entirety by the Second Amended Complaint.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s “Motion for Default Judgment”

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(ECF No. 52) is DENIED without prejudice to its renewal in proper form.

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DATED: May 10, 2016

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