McGee v. The City of Hercules et al

Filing 27

ORDER by Judge Thomas S. Hixson denying 26 Motion for Entry of Default; denying 26 Motion for Default Judgment. (tshlc1, COURT STAFF) (Filed on 5/9/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 ANTHONY MCGEE, Plaintiff, 7 8 9 Case No. 23-cv-05161-TSH v. THE CITY OF HERCULES, et al., Defendants. 10 ORDER DENYING MOTION FOR ENTRY OF DEFAULT AND DEFAULT JUDGMENT Re: Dkt. No. 26 United States District Court Northern District of California 11 12 Plaintiff Anthony McGee, who is representing himself, has filed a motion for entry of 13 default and default judgment against Defendants The City of Hercules and Hercules Police 14 Department. ECF No. 26. Pursuant to Federal Rule of Civil Procedure 55(a), default may be 15 entered “[w]hen a party against whom a judgment for affirmative relief is sought has failed to 16 plead or otherwise defend.” As Defendants filed an Answer (ECF No. 11) and are actively 17 defending themselves in this matter, default is inappropriate. Further, entry of default is a 18 prerequisite for bringing a motion for default judgment under Rule 55(b). See Symantec Corp. v. 19 Glob. Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009) (noting the two-step process under Rule 55 20 of entering default and then entering a default judgment); Smith v. Woodward, 2008 WL 2477382, 21 at *1 (N.D. Cal. June 18, 2008) (denying default judgment motion as “premature because default 22 had not been entered against Defendants.”). Accordingly, Plaintiff’s motion for default judgment 23 is DENIED. 24 IT IS SO ORDERED. 25 26 Dated: May 9, 2024 27 28 THOMAS S. HIXSON United States Magistrate Judge

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