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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY MCGEE,
Plaintiff,

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Case No. 23-cv-05161-TSH

v.
THE CITY OF HERCULES, et al.,
Defendants.

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ORDER DENYING MOTION FOR
ENTRY OF DEFAULT AND DEFAULT
JUDGMENT
Re: Dkt. No. 26

United States District Court
Northern District of California

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Plaintiff Anthony McGee, who is representing himself, has filed a motion for entry of

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default and default judgment against Defendants The City of Hercules and Hercules Police

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Department. ECF No. 26. Pursuant to Federal Rule of Civil Procedure 55(a), default may be

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entered “[w]hen a party against whom a judgment for affirmative relief is sought has failed to

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plead or otherwise defend.” As Defendants filed an Answer (ECF No. 11) and are actively

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defending themselves in this matter, default is inappropriate. Further, entry of default is a

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prerequisite for bringing a motion for default judgment under Rule 55(b). See Symantec Corp. v.

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Glob. Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009) (noting the two-step process under Rule 55

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of entering default and then entering a default judgment); Smith v. Woodward, 2008 WL 2477382,

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at *1 (N.D. Cal. June 18, 2008) (denying default judgment motion as “premature because default

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had not been entered against Defendants.”). Accordingly, Plaintiff’s motion for default judgment

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is DENIED.

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IT IS SO ORDERED.

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Dated: May 9, 2024

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THOMAS S. HIXSON
United States Magistrate Judge