Opinion
1:22-cv-00614-DAD-SAB
06-30-2022
JOHN DURAN, et al., Plaintiffs, v. CITY OF PORTERVILLE, et al Defendants.
ORDER DENYING PLAINTIFFS' REQUEST FOR ENTRY OF DEFAULT AND DIRECTING CLERK OF COURT TO ABSTAIN FROM ENTERING DEFAULT (ECF No. 11)
Plaintiffs, proceeding pro se, filed this action on May 23, 2022. (ECF No. 1.) Defendants were served on May 31, 2022. (ECF No. 4.) On June 21, 2022, all Defendants joined in and filed a motion to dismiss this action. (ECF No. 5.) On June 27, 2022, Plaintiffs filed a request for entry of default, proffering the Defendants have failed to plead or otherwise defend in this action. (ECF No. 11.)
Rule 55 of the Federal Rules of Civil Procedure provides that “[w]hen a party against whom a judgment or affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(b)(1). Before a default is entered, the “court clerk must be satisfied from Plaintiff[s] request and accompanying documentation that (1) defendant has been served with the summons (or has agreed to waive service); (2) the time allowed by law for responding has expired; (3) defendant has failed to file a pleading or motion permitted by law; and (4) defendant is neither a minor nor an incompetent person.” Shapour v. California, Dep't of Transp., No. 1:13-CV-1682 AWI-BAM, 2013 WL 6797470, at *1 (E.D. Cal. Dec. 19, 2013) (citations omitted).
Defendants have filed a motion to dismiss that is currently pending before the District Judge, and therefore, Plaintiff's request for entry of default shall be denied because Defendants have not failed to plead or otherwise defend in this action.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiffs' request for entry of default (ECF No. 11) is DENIED; and
2. The Clerk of the Court is DIRECTED to ABSTAIN from entering default against
Defendants pursuant to Plaintiffs' request filed June 27, 2022 (ECF No. 11).
IT IS SO ORDERED