Opinion
2:22-cv-00650-WBS-JDP (PC)
08-20-2023
DURRELL ANTHONY PUCKETT, Plaintiff, v. D. MORENO, et al., Defendants.
FINDINGS & RECOMMENDATIONS
JEREMY D. PETERSON, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state inmate proceeding pro se, has filed two motions for default judgment against defendant Haynes. ECF Nos. 23 & 26. Obtaining a default judgment is a two-step process governed by Rule 55 of the Federal Rules of Civil Procedure. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). First, the moving party must seek an entry of default from the Clerk of Court. Fed.R.Civ.P. 55(a). Then, after the Clerk of Court enters default, a party must separately seek entry of default judgment from the court in accordance with Rule 55(b).
Because plaintiff has not obtained entry of default from the Clerk of Court against defendant Haynes, which is a prerequisite for obtaining default judgment under Rule 55(a), plaintiff's motions are construed as requests for entry of default and should be denied.
Rule 55(a) permits entry of default only when it appears “by affidavit or otherwise” that a defendant has failed to plead in response to a complaint. Fed.R.Civ.P. 55(a). Here, defendant Haynes has responded to the complaint; she filed an answer on August 11, 2023. See ECF No. 30.
Accordingly, it is hereby RECOMMENDED that plaintiff's motions for default judgment, ECF Nos. 23 & 27, be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days of service of these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Any response shall be served and filed within fourteen days of service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED.