1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RONALD BRYSON, Case No.: 3:22-cv-00556-JES-VET

12 Petitioner,

ORDER ON PETITIONER’S

13 v. MOTION FOR DEFAULT

14 RAYMOND MADDEN, et al., [Doc. No. 32] 15 Respondents. 16 17 18 Before the Court is Petitioner Ronald Bryson’s (“Petitioner”) Motion of Objection 19 to Order Granting Request for an Extension of Time to File Response and Motion for Entry 20 of Default (“Motion”). Doc. No. 32. For the reasons detailed below, the Court DENIES 21 the Motion. 22 I. BACKGROUND 23 Petitioner, proceeding pro se, is incarcerated at the Richard J. Donovan Correctional 24 Facility in San Diego, California. On September 18, 2023, Petitioner filed an Amended 25 Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (“Amended Petition”). Doc. 26 Nos. 23. The Petition raises 120 claims. Id. Due in part to Petitioner’s voluminous claims, 27 the Court initially granted Respondents Raymond Madden and Rob Bonta (“Respondents”) 28 a sixty-day extension to file an answer. Doc. No. 28. Petitioner objects to the extension, 1 arguing that it creates extreme delay and thus violates Petitioner’s due process rights. Doc. 2 No. 32 at 2, 26–28. Petitioner therefore requests the Court enter a default judgment against 3 Respondents. Id. at 17. 4 II. LEGAL STANDARD 5 Pursuant to Federal Rule of Civil Procedure 55, obtaining a default judgment is a 6 two-step process. Fed. R. Civ. R. 55(a)–(b); Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 7 1986) (explaining the “two-step process” required by Rule 55 for entry of default 8 judgment). First, the clerk must enter the party’s default. Fed. R. Civ. R. 55(a). Entry of 9 default is appropriate “when a party against whom a judgment for affirmative relief is 10 sought has failed to plead or otherwise defend, and that failure is shown by affidavit or 11 otherwise.” Id. 12 Next, following entry of default, a plaintiff may move for a default judgment. Fed. 13 R. Civ. P. 55(b); see also Symantec Corp. v. Global Impact, Inc., 559 F.3d 922, 923 (9th 14 Cir. 2009) (distinguishing entry of default from a default judgment). The Court considers 15 the Eitel factors when deciding such a motion: (1) the possibility of prejudice to the 16 plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, 17 (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning 18 material facts, (6) whether the default was due to excusable neglect, and (7) the strong 19 policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 20 Eitel, 782 F.2d at 1471–72. Whether to grant a motion for default judgment is within the 21 Court’s discretion. See Hawaii Carpenters’ Trust Funds v. Stone, 794 F.2d 508, 513 (9th 22 Cir. 1986). 23 III. ANALYSIS 24 Petitioner’s Motion fails for several reasons. First, the Motion is premature. “Entry 25 of default must be obtained prior to entry of default judgment.” Fruit v. James Corrado 26 Inc., No. 24-cv-00377-KES-SKO, 2024 U.S. Dist. LEXIS 83428, at *2 (E.D. Cal. May 7, 27 2024); see also Eitel, 782 F.2d at 1471. Thus, “courts regularly deny motions for default 28 judgment where default has not been previously entered.” Ardalan v. McHugh, No. 13- 1 CV-01138-LHK, 2013 U.S. Dist. LEXIS 169470, at *82 (N.D. Cal. Nov. 27, 2013) (listing 2 cases). 3 Here, the record does not reflect entry of default by the Clerk of the Court. Because 4 this prerequisite is not satisfied, Petitioner’s Motion is premature and not properly before 5 this Court. See Hahn v. Waddington, 782 F. App’x 607, 608 (9th Cir. 2019) (affirming 6 denial of motion for default judgment given failure to first obtain an entry of default); 7 Norman v. Small, No. 09-cv-2235-WQH (NLS), 2010 U.S. Dist. LEXIS 133507, at *5–6 8 (S.D. Cal. Dec. 14, 2010) (denying motion for default judgment where clerk did not enter 9 default); Ardalan, 2013 U.S. Dist. LEXIS 169470, at *82 (“Without first obtaining an entry 10 of default against Defendants, Plaintiffs [sic] motion for default judgment is improperly 11 before this Court.”). 12 Even if properly before the Court, the Motion still fails. “Default is an inappropriate 13 method of adjudication when it appears that there is an intent to contest the allegations.” 14 First Direct Payment Servs. v. Real Time Care LLC, No. 22-cv-1599-MMA (DEB), 2023 15 U.S. Dist. LEXIS 90039, at *5 (S.D. Cal. Feb. 28, 2023) (internal citation and quotations 16 omitted). In this case, Respondents filed timely requests for extensions, demonstrating an 17 intent to respond or otherwise defend against Petitioner’s claims. Indeed, Respondents filed 18 an Answer to the Amended Petition on May 17, 2024, contesting Petitioner’s 120 claims. 19 Doc. Nos. 37-1 at 3, 5–34; see also Smith v. Avalos, No. 20-CV-1534-JAH (LR), 2023 U.S. 20 Dist. LEXIS 191076, at *4 (S.D. Cal. Oct. 24, 2023) (concluding that default was 21 inappropriate because defendant had filed an answer and indicated their intention to defend 22 the action). Further, to the extent the basis for the Motion is “extreme delay,” the Motion 23 is insufficient on its face. Doc. No. 32 at 2. “[D]elay alone is insufficient to warrant a 24 default.” Rogers v. Giurbino, 288 F.R.D. 469, 490 (S.D. Cal. 2012) (citing Adriana Int’l 25 Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir.1990)). 26 In short, Respondents contest Petitioner’s allegations, as evidenced by their Answer. 27 As such, a default judgment is inappropriate and contrary to “the general rule that default 28 1 ||judgments are ordinarily disfavored” and “[c]ases should be decided upon their merits 2 || whenever reasonably possible.” Eitel, 782 F.2d at 1472. 3 CONCLUSION 4 For the reasons stated above, the Court DENIES Petitioner’s Motion for Default 5 || Judgment. 6 IT IS SO ORDERED. 7 8 Dated: August 7, 2024 (re SK 9 Honorable Valerie E. Torres 10 United States Magistrate Judge 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28