Turner v. Tierney

Filing 22

ORDER DENYING PLAINTIFF'S 12 MOTION FOR JUDGMENT BY DEFAULT. Signed by Judge Maxine M. Chesney on January 25, 2013. (mmclc2, COURT STAFF) (Filed on 1/25/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

For the Northern District of California

United States District Court

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STEPHEN B. TURNER,
No. C 12-6231 MMC

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Plaintiff,

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ORDER DENYING PLAINTIFF’S MOTION
FOR JUDGMENT BY DEFAULT

v.
DUSTIN TIERNEY,

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Defendant.

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Before the Court is plaintiff Stephen B. Turner’s Motion for Judgment by Default,

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filed January 18, 2013, by which motion plaintiff seeks entry of default judgment against

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defendant Dustin Tierney pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure.

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Default judgment may not be entered prior to entry of default by the Clerk of Court. See

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Brooks v. United States, 29 F. Supp. 2d 613, 618 (N.D. Cal. 1998) aff’d, 162 F.3d 1167 (9th

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Cir. 1998) (denying motion for default judgment where clerk had not entered defendant’s

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default; holding “default judgment may be entered only upon the entry of default by the

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Clerk of the Court”); Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998)

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(holding “entry of default under Rule 55(a) must precede grant of a default judgment under

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Rule 55(b)”). In the instant case, the Clerk of Court, on January 25, 2013, denied entry of

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default.

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//

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//

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Accordingly, default not having been entered, plaintiff’s motion is hereby DENIED.

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IT IS SO ORDERED.

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Dated: January 25, 2013
MAXINE M. CHESNEY
United States District Judge

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