(PS)Storman v. U.S. Office of the Secretary

Filing 15

ORDER signed by Magistrate Judge Allison Claire on 12/5/17 ORDERING that plaintiff's motion for default judgment (ECF No. #14 ) is construed as a request for Clerk's Entry of Default. The Clerk of the Court is directed to make the determination required under Fed. R. Civ. Proc. 55(a). (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL D. STORMAN,

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Plaintiff,

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No. 2:17-cv-0976 MCE AC

v.

ORDER

U.S. OFFICE OF THE SECRETARY,
DHHS,
Defendant.

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Plaintiff, who is proceeding pro se, has filed a motion for default judgment. ECF No. 14.

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The motion will be construed as a request for entry of default by the Clerk, pursuant to Fed. R.

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Civ. P. 55(a). Plaintiff is informed below of the procedures to be followed in pursuing a default

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judgment.

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Procedure for Default

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A party seeking default judgment must first request entry of default from the Clerk’s

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Office under Fed. R. Civ. P. 55(a). The court Clerk determines whether entry is appropriate by

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reviewing the requesting party’s request and accompanying documentation. If the Clerk finds

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that the facts establish afailure to plead or otherwise defend, the Clerk will enter a default without

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any need for a judicial order. A default entry is not a judgment, but it is a necessary precondition

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for judgment.
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If the plaintiff is granted entry of default by the Clerk of the Court, plaintiff may apply to

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the court to obtain a default judgement. Fed. R. Civ. Proc. 55(b)(2). Plaintiff must file a motion

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for entry of default judgment and notice the motion for hearing before the undersigned pursuant

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to Local Rule 230. The motion may be made any time after entry of defendant’s default.

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However, “[a] defendant’s default does not automatically entitle the plaintiff to a court-

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ordered judgment.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002)

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(citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)); see Fed. R. Civ. P. 55(b)

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(governing the entry of default judgments). Instead, the decision to grant or deny an application

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for default judgment lies within the district court’s sound discretion. Aldabe v. Aldabe, 616 F.2d

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1089, 1092 (9th Cir. 1980). In making this determination, the court will consider the following

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factors:

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(1) the possibility of prejudice to the plaintiff; (2) the merits of
plaintiff's substantive claim; (3) the sufficiency of the complaint;
(4) the sum of money at stake in the action; (5) the possibility of a
dispute concerning material facts; (6) whether the default was due
to excusable neglect; and (7) the strong policy underlying the
Federal Rules of Civil Procedure favoring decisions on the merits.

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Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Default judgments are ordinarily

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disfavored. Id. at 1472.

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As a general rule, once default is entered by the Clerk, well-pleaded factual allegations in

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the operative complaint are taken as true, except for those allegations relating to damages.

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TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam). Although

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well-pleaded allegations in the complaint are admitted by a defendant’s failure to respond,

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“necessary facts not contained in the pleadings, and claims which are legally insufficient, are not

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established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992).

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Any motion for default judgment under Fed. R. Civ. Proc. 55(b)(2) should address the
factors set forth in Eitel v. McCool, above.

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For the reasons set forth above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for default judgment (ECF No. 14) is construed as a request for

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Clerk’s Entry of Default.
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2. The Clerk of the Court is directed to make the determination required under Fed. R.

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Civ. Proc. 55(a).

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DATED: December 7, 2017

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