Skinner #193387 v. Ryan et al

Filing 99

ORDER denying 60 Plaintiff's Application for Default Judgment Against Defendant Susan Zaborsky and granting 67 Defendant Zaborsky's Motion for Leave to File Untimely Answer. Clerk is kindly directed to file Defendant Zaborsky's Notice of Joinder, currently lodged at (Doc. 68 . Signed by Magistrate Judge Lawrence O Anderson on 1/10/14.(LSP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

James E. Skinner,
Plaintiff,

10
11

vs.

12

Charles L. Ryan, et al.,

13

Defendants.

)
)
)
)
)
)
)
)
)
)

No. CV-12-1729-PHX-SMM (LOA)
ORDER

14

This matter is before the Court on Plaintiff’s Application for Default Judgment
15

Against Defendant Susan Zaborsky and Defendant’s Motion for Leave to File Untimely Answer
16

and Response to Motion for Default Judgment. (Docs. 60, 67) Plaintiff has filed a Response to
17

Defendant’s Motion for Leave to File Untimely Answer and Reply in Support of His Motion
18

for Default Judgment. (Doc. 71)
19

I. Background
20

On February 19, 2013, after screening Plaintiff’s First Amended Complaint, the
21

assigned District Judge ordered service of process on fourteen defendants, including Defendant
22

Susan Zaborsky. (Doc. 9) Defendants were directed to answer Count I of the First Amended
23

Complaint in which Plaintiff alleges he is being deprived of basic necessities in violation of the
24

Eighth Amendment, including inadequate plumbing in his cell, unsanitary conditions in his cell
25

and other areas, and the failure to provide cleaning supplies to address the unsanitary conditions.
26

(Doc. 8) The docket shows Defendant Zaborsky waived service on April 8, 2013, and her
27

answer was due by April 30, 2013. (Doc. 26) Defendant Zaborsky failed to file a timely answer
28

and she now requests leave to submit an untimely answer.

1

II. Application for Default Judgment

2

Plaintiff seeks a default judgment against Defendant Zaborsky based on her failure

3

to file a timely answer. Defendant devotes much of her response to arguing that default should

4

be set aside pursuant to Federal Rule of Civil Procedure 60(b). Rule 60(b), however, applies to

5

requests for relief from default judgments that have already entered. See Fed.R.Civ.P. 55(c).

6

Because neither the Clerk of Court nor the District Court has entered either the default or default

7

judgment against Defendant Zaborsky, Rule 60(b) does not apply.

8

Federal Rule of Civil Procedure 55 sets forth the standards for entry of default and

9

entry of a default judgment. Before a party can obtain a default judgment from the Court under

10

Rule 55(b), the Clerk of Court must enter default as provided in Rule 55(a). 10A Charles Alan

11

Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2682 (3d

12

ed.1998); see also Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir.1998)

13

(“[E]ntry of default under Rule 55(a) must precede grant of a default judgment under Rule

14

55(b).”); Kruska v. Perverted Justice Foundation Inc., 2008 WL 4936615, *1 (D. Ariz. Nov.

15

15, 2008) (“Before a default judgment can be entered by the court, the party must move the

16

court to direct the entry of default in accordance with Rule 55(a) and default must be entered

17

by the clerk.”).

18

Here, Plaintiff did not seek entry of default when Defendant Zaborsky failed to answer

19

within the time allowed. Rather, he moved directly for a default judgment. Because Plaintiff

20

failed to first seek, and obtain, entry of default, his motion for default judgment is procedurally

21

improper and will be denied on that basis. Moreover, as the following analysis of Defendant

22

Zaborsky’s Motion for Leave to File an Untimely Answer reflects, the Court finds excusable

23

neglect for the untimely answer. Thus, by granting Defendant Zaborsky’s motion, Plaintiff’s

24

motion for default judgment is rendered moot.

25

III. Motion for Leave to File Untimely Answer

26

Defendant requests in the motion that she be permitted to file the Notice of Joinder,

27

lodged at doc. 68, in which she joins in the Answer, doc. 27, filed on April 30, 2013. Defendant

28

explains that her counsel neglected to file a timely answer despite having the information
-2-

1

necessary to do so. In a declaration attached to the motion, counsel’s legal secretary explains

2

the failure to file the answer on time “was purely accidental and inadvertent.” (Doc. 67-1 at 2)

3

When an act must be done within a specified time, and an enlargement of time is

4

sought after the time has expired, the movant must show it “failed to act because of excusable

5

neglect.” Fed.R.Civ.P. 6(b)(1)(B). “To determine whether a party's failure to meet a deadline

6

constitutes ‘excusable neglect,’ courts must apply a four-factor equitable test, examining: (1)

7

the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact

8

on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good

9

faith.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (citing Pioneer

10

Inv. Servs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 395 (1993) and Briones v. Riviera Hotel

11

and Casino, 116 F.3d 379, 381 (2010)); see also In re Veritas Software Corp. Secs. Litig., 496

12

F.3d 962, 973 (9th Cir. 2007) (applying four factor test to Rule 6(b) “excusable neglect”

13

analysis). The determination of “what sorts of neglect will be considered ‘excusable’ . . . is at

14

bottom an equitable one, taking account of all relevant circumstances surrounding the party's

15

omission.” Pioneer, 507 U.S. at 395.

16

With regard to the first factor, Plaintiff fails to allege in his response any specific

17

prejudice resulting from Defendant Zaborsky’s untimely answer. He refers to defense counsel’s

18

actions as causing prejudice in a general sense but asserts nothing specific. (Doc. 71 at 4)

19

Moreover, Plaintiff would be hard-pressed to convince the Court of a “danger of prejudice”

20

from Zaborsky’s untimely answer given Plaintiff’s ongoing attempts to serve the remaining

21

unserved defendant. (See Docs. 75, 95) The Court recently granted another request by Plaintiff

22

for assistance in obtaining a service address for Defendant Rita S. Duarte. (Doc. 95) Thus, any

23

delay in prosecuting this action caused by Defendant Zaborsky’s untimely answer is

24

insignificant is light of the continuing delay resulting from Plaintiff’s attempts to serve

25

Defendant Duarte. Under the circumstances, the Court finds no “danger of prejudice” from

26

Defendant Zaborsky’s failure to file a timely answer.

27

Next, although the delay between the answer deadline and the filing of the instant

28

motion was approximately six months, the Court finds, under the circumstance of this case, the
-3-

1

delay is not long enough to justify denying the defendant’s motion because the impact of the

2

delay on the proceedings is relatively minimal. As noted above, Plaintiff’s First Amended

3

Complaint sufficiently alleged a cause of action against fourteen separate defendants. Even

4

though the screening order was issued in February of 2013, Plaintiff has still not served each

5

defendant. Since an Answer was filed by nine of the defendants on April 30, 2013, three

6

additional defendants have joined the Answer (Docs. 35, 38 and 74) The most recent joinder

7

was less than two months ago, on November 18, 2013. (Doc. 74) Defendant Zaborsky’s

8

untimely answer comes less that two months since the last joinder and it precedes any answer

9

from the remaining unserved defendant. Thus, although in some circumstances a six-month

10

delay between the answer deadline and a motion to file an untimely answer might have a

11

significant impact on the proceedings, the Court finds it did not have a significant impact here.

12

As to the reason for the delay and whether the movant acted in good faith, the

13

Declaration of defense counsel’s legal secretary, Colleen Jordan, explains how the failure to file

14

Defendant Zaborsky’s joinder to the Answer was simply an oversight. (Doc. 67-1 at 2) Ms.

15

Jordan states Defendant Zaborsky was served and executed a joint representation agreement

16

which, typically, would prompt Ms. Jordan to file a joinder. (Id.) She states her failure to do so

17

“was purely accidental and inadvertent” and at no time did she “intentionally or knowingly omit

18

filing such a joinder.” (Id.) Ms. Jordan states she filed an untimely joinder on behalf of

19

Defendant Zaborsky as soon as she became aware of the omission on November 1, 2013. (Id.)

20

Although the Court has concerns that defense counsel failed to recognize for six

21

months that a defendant he was representing had not entered a proper appearance, the Court

22

finds no basis to conclude he or his legal secretary acted in bad faith.1 The innocuous, non-

23

intentional reason for the delay, along with the absence of any bad faith, supports a finding of

24

excusable neglect.

25
26
27
28

1

The Court even noted in an Order back on August 2, 2013, doc. 42, that Defendant
Zaborsky waived service on April 19, 2013, but had not yet filed an Answer. It appears counsel
failed to read the Order because it wasn’t until Plaintiff filed his motion for default judgment
on October 29, 2013, that defense counsel realized Zaborsky had not filed an answer.
-4-

1

Applying the four-factor test and balancing the equities, the Court finds Defendant

2

Zaborsky has made the requisite showing of excusable neglect under Fed.R.Civ.P. 6(b)(1)(B).

3

Each factor individually, and the combination of factors, when applied to the circumstances of

4

this case, support a finding of excusable neglect for Defendant Zaborsky’s untimely answer.

5

Moreover, such a finding is consistent with the public policy that “[t]his rule, like all the Federal

6

Rules of Civil Procedure, ‘[is] to be liberally construed to effectuate the general purpose of

7

seeing that cases are tried on the merits.’” Ahanchian, 624 F.3d at 1258-59 (quoting Rodgers

8

v. Watt, 722 F.2d 456, 459 (9th Cir. 1983) (other citations omitted). For these reasons, the Court

9

will grant the motion for leave to file an untimely answer and direct the Clerk of the Court to

10

file Defendant Zaborsky’s lodged Notice of Joinder.

11

Accordingly,

12

IT IS ORDERED that Plaintiff’s Application for Default Judgment Against

13

Defendant Susan Zaborsky, doc. 60, is DENIED.

14

IT IS FURTHER ORDERED that Defendant Zaborsky’s Motion for Leave to File

15

Untimely Answer, doc. 67, is GRANTED. The Clerk of Court is kindly directed to file

16

Defendant Zaborsky’s Notice of Joinder, currently lodged at doc. 68.

17

DATED this 10th day of January, 2014.

18
19
20
21
22
23
24
25
26
27
28
-5-