McGee v. The City of Hercules

Opinion

1 2 5 6 ANTHONY MCGEE, Case No. 23-cv-05161-TSH 7 Plaintiff, ORDER DENYING MOTION FOR 8 Vv. ENTRY OF DEFAULT AND DEFAULT JUDGMENT 9 THE CITY OF HERCULES, et al., Re: Dkt. No. 26 10 Defendants. 11 qg 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

v 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 (ND. 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. 25 26 Dated: May 9, 2024 27 7 LU \ - Lj-~— THOMAS S. HIXSON 28 United States Magistrate Judge