1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICIA LYNN SMITH and RASHID No. 2:24-cv-02268-DC-SCR

DESHAWN DEARY-SMITH,

12 13 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DENY MOTION FOR DEFAULT

14 v. JUDGMENT 15 CITY OF SACRAMENTO et al, 16 Defendant. 17 18

19 Plaintiffs’ motion for a default judgment against Defendants County of Sacramento, Noah 20 Louis Phillips, Kelly Michael Jobe, Nicholas Bo Johnson, Michael Allen Savage, Alicia Derrico, 21 Jesse R. Saucedo, District Attorney’s Office, and Sacramento County Sheriff Department (ECF 22 No. 31) is before the undersigned pursuant to Local Rule 302(c)(19). 23 Federal Rule of Civil Procedure 55 governs entry of default and applications for default 24 judgment. When a party against whom a plaintiff seeks affirmative relief has failed to plead or 25 otherwise defend against such action, and that this failure is shown by affidavit or otherwise, the 26 clerk must enter the party’s default. Fed. R. Civ. P. 55(a). Upon entry of default, the complaint’s 27 factual allegations regarding liability are taken as true, while allegations regarding the amount of 28 1 | damages must be proven. Dundee Cement Co. v. Howard Pipe & Concrete Prods., 722 F.2d 2 | 1319, 1323 (7th Cir. 1983) (citing Pope v. United States, 323 U.S. 1 (1944); Geddes v. United 3 | Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also DirectTV v. Huynh, 503 F.3d 847, 851 (9th 4 || Cir. 2007); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). 5 The motion asserts that the targeted Defendants “failed to answer or defend against the 6 || complaint.” ECF No. 31 at 2. These Defendants have defended against the action by filing 7 || motions to dismiss the complaint. ECF Nos. 24, 28. Accordingly, the clerk declined to enter 8 | default against these Defendants the day after Plaintiffs filed their motion for default judgment. 9 || ECF No. 32. Plaintiffs have since filed affidavits asserting that these Defendants did not defend 10 || against the First Amended Complaint “within the time allowed by California Laws.” ECF Nos. 11 | 37 at 2,38 To the extent that the motions to dismiss this action are untimely, Plaintiffs have 12 || waived such defect by not requesting default before Defendants filed such motions. 13 IT IS HEREBY RECOMMENDED that Plaintiffs’ motion for default judgment be 14 | DENIED. 15 These findings and recommendations are submitted to the United States District Judge 16 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 17 || days after these findings and recommendations are filed, any party may file written objections 18 || with the Court. A document containing objections should be titled “Objections to Magistrate 19 || Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed 20 || within 14 days after service of the objections. The parties are advised that failure to file 21 || objections within the specified time may, under certain circumstances, waive the right to appeal 22 | the District Court’s order. See Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 23 24 Dated: March 27, 2025 / MA en 26 U.S. MAGISTRATE JUDGE 27 28