Bostik, Inc. v. J.E. Higgins Lumber Company et al

Filing 10

ORDER DENYING WITHOUT PREJUDICE 8 MOTION for Default Judgment by the Clerk as to Defendant J. E. Higgins Lumber Company filed by Bostik, Inc... Signed by Judge Maria-Elena James on 9/21/2012. (cdnS, COURT STAFF) (Filed on 9/21/2012)

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UNITED STATES DISTRICT COURT

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Northern District of California

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BOSTIK, INC,

No. C 12-4021 MEJ
Plaintiff,

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v.

ORDER DENYING MOTION FOR
DEFAULT JUDGMENT

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J.E. HIGGINS LUMBER CO., et al.,

Re: Docket No. 8

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Defendants.
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For the Northern District of California

UNITED STATES DISTRICT COURT

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Pending before the Court is Plaintiff Bostik, Inc.’s Application for Default Judgment against

14 J.E. Higgins Lumber Company, filed September 20, 2012. Dkt. No. 8. Federal Rule of Civil
15 Procedure 55 governs the entry of default by the clerk and the subsequent entry of default judgment
16 by either the clerk or the district court. The Ninth Circuit Court of Appeals has stated that Rule 55
17 requires a “two-step process,” consisting of: (1) seeking the clerk’s entry of default, and (2) filing a
18 motion for entry of default judgment. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir .1986) (“Eitel
19 apparently fails to understand the two-step process required by Rule 55.”); Symantec Corp. v. Global
20 Impact, Inc., 559 F.3d 922, 923 (9th Cir.2009) (noting “the two-step process of ‘Entering a Default’
21 and ‘Entering a Default Judgment’”). In this case, default has not been entered against J.E. Higgins
22 Lumber Company. Thus, without first obtaining an entry of default against J.E. Higgins, Bostik,
23 Inc.’s motion for default judgment is improperly before this Court. Thus, the motion is DENIED
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IT IS SO ORDERED.

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27 Dated: September 21, 2012
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_______________________________
Maria-Elena James
Chief United States Magistrate Judge