United States District Court, D. Nevada
ORDER DENYING MOTIONS FOR DEFAULT JUDGMENT AND TO
STRIKE [ECF NOS. 32, 38]
JENNIFER A. DORSEY, UNITED STATES DISTRICT JUDGE.
Steven Ringelberg filed a “Motion for Entry of
Judgment” asking this court to enter judgment against
the defendants under FRCP 55(b)(2) as to liability and
“set a schedule for discovery and a trial on damages
only” because the defendants have not answered his
second amended complaint. There are multiple problems with this
request, each of which independently requires its denial.
plaintiff skipped a required step. Rule 55 of the Federal
Rules of Civil Procedure, which governs defaults and default
judgments, requires that a default be entered before a
default judgment can be requested. Because no default against
the defendants has been requested or entered, plaintiff's
request for a default judgment is early.
even if I construe this motion as one for entry of default,
it lacks merit. Rule 55(a) directs the Clerk to default a
party who “has failed to plead or otherwise
defend.” “A motion to dismiss constitutes
defending an action within the meaning of this rule even if
the defendants have not filed answers to the
complaint.” And the defendants have filed motions to
dismiss, entered into a stipulation to transfer this case
from the District Court for the District of Columbia to this
district, and filed a new motion to dismiss the same day that
plaintiff's motion for judgment was filed.These filings
demonstrate an intention to defend and preclude the entry of
before granting a request for default judgment, the court
must evaluate several factors including: “(1) the
possibility of prejudice to the plaintiff, (2) the merits of
plaintiff's substantive claim, (3) the sufficiency of the
complaint, (4) the sum of money at stake in the action; (5)
the possibility of a dispute concerning material facts; (6)
whether the default was due to excusable neglect, and (7) the
strong policy underlying the Federal Rules of Civil Procedure
favoring decisions on the merits.” Plaintiff has not
addressed these factors at all, let alone demonstrated why
they favor default judgment here. I thus deny the motion for
has also moved to strike the defendants' motion to
dismiss, arguing that it is procedurally
improper. I find that this procedural objection
should be included as an argument in opposition to the motion
to dismiss, not as a motion to strike the motion.
Accordingly, I deny the motion to strike and direct the
plaintiff to simply include this procedural objection as an
argument in his opposition to the motion to dismiss.
IT IS HEREBY ORDERED that Plaintiff's Motion for Judgment
[ECF No. 32] is DENIED;
FURTHER ORDERED that Plaintiff's Motion to Strike
Defendants' Rule 12(b)(6) Motion and Any Supporting
Pleadings or Exhibits [ECF No. 38] is DENIED. Plaintiff is
instructed to incorporate the subject of the motion to strike
into his opposition to the motion to dismiss [ECF No. 34].
 ECF No. 32.
 As the Ninth Circuit Court of Appeals
has stated, Rule 55 requires a “two-step process”
consisting of: (1) seeking a clerk's entry of default,
and (2) filing a motion for the entry of default judgment.
See, e.g., Eitel v. McCool, 782 F.2d 1470, 1471 (9th
Cir. 1986) (“Eitel apparently fails to understand the
two-step process required by Rule 55.”); accord
Symantec Corp. v. Global Impact, Inc., 559 F.3d 922, 923