Benyamini v. Manjuano et al

Filing 97

FINDINGS and RECOMMENDATIONS, Recommending That Plaintiff's Request for Entry of Default Against Defendant Debbie Mandujano Be Denied; OBJECTIONS, IF ANY, DUE IN 30 DAYS (Doc. 83 ; Also Resolves Docs. 92 , 94 , 95 ), signed by Magistrate Judge Gary S. Austin on 5/24/11: Matter/Motions referred to Judge Ishii. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT BENYAMINI, 12 Plaintiff, 13 14 1:06-cv-01096-AWI-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT AGAINST DEFENDANT DEBBIE MANDUJANO BE DENIED (Doc. 83; Also Resolves Docs. 92, 94, 95.) v. MANJUANO, et al., 15 Defendants. OBJECTIONS, IF ANY, DUE IN 30 DAYS 16 / 17 18 I. BACKGROUND 19 Robert Benyamini (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 20 action filed pursuant to 42 U.S.C. § 1983. This action now proceeds with the Third Amended 21 Complaint, filed on May 23, 2008, on Plaintiff's Eighth Amendment claims for adverse 22 conditions of confinement against defendants Debbie Mandujano,1 Deputy Wilcox, Deputy 23 Wilkerson, and Deputy O’Grady.2 (Doc. 35.) On January 5, 2011, Plaintiff filed a request for 24 entry of default against defendant Debbie Mandujano (“Defendant”). (Doc. 83.) 25 1 26 27 Plaintiff identified this defendant in the Third Amended Complaint as Debbie Manjuano. (Doc. 35.) However, in the Answer to the complaint, Defendant spelled her name Debbie Mandujano. (Doc. 79.) The Court uses Defendant’s spelling herein. 2 28 On May 26, 2009, the Court dismissed all other claims and defendants from this action based on Plaintiff’s failure to state a claim. (Doc. 52.) 1 1 II. 2 REQUEST FOR ENTRY OF DEFAULT Plaintiff argues that default should be entered against Defendant Debbie Mandujano 3 because Defendant failed to file a response to the complaint within twenty-one days of the date 4 Defendant was served with process, and because Plaintiff’s case has merit. 5 Entry of default is appropriate as to any party against whom a judgment for affirmative 6 relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of 7 Civil Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P. 8 55(a). Rule 12 of the Federal Rules of Civil Procedure provides, “[A] defendant must serve an 9 answer within 21 days after being served with the summons and complaint; or if it has timely 10 waived service under Rule 4(d), within 60 days after the request for a waiver was sent.” Fed. R. 11 Civ. P. 12(a)(1)(A). Under Rule 4(d), a defendant may waive service of a summons by signing 12 and returning a waiver of service. Fed. R. Civ. P. 4(d). 13 III. 14 DISCUSSION On September 17, 2009, the Court directed the United States Marshal to serve process 15 upon the defendants in this action. (Doc. 58.) On May 21, 2010, the United States Marshal filed 16 a return of service executed upon Defendant Debbie Mandujano, indicating that Defendant had 17 been personally served with a summons and a copy of the complaint on May 11, 2010. (Doc. 18 65.) On December 16, 2010, Defendant filed an Answer to the complaint. (Doc. 79.) No default can be entered if defendant has filed a response indicating its intent to defend 19 20 the action. Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 21 689 (9th Cir. 1988) (emphasis added). Even a late-filed responsive pleading (filed after 22 expiration of the time allowed by Fed. R. Civ. P. 12(a)) prevents entry of default. Mitchell v. 23 Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1317 (11th Cir. 2002) (emphasis added). 24 Defendant Debbie Mandujano failed to file a response to the complaint within twenty-one days 25 after being served with the summons and complaint. However, because Defendant filed an 26 Answer to the complaint on December 16, 2010, no default can be entered. Even though 27 Defendant’s Answer was filed late, it prevents entry of default because it indicates Defendant’s 28 /// 2 1 intent to defend this action. Whether Plaintiff’s case has merit is not a basis for entry of default. 2 Therefore, Plaintiff’s request for entry of default should be denied. 3 IV. 4 CONCLUSION AND RECOMMENDATIONS Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s request for 5 entry of default against Defendant Debbie Mandujano, filed on January 5, 2011, be DENIED. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days 8 after being served with these findings and recommendations, the parties may file written 9 objections with the court. Such a document should be captioned "Objections to Magistrate 10 Judge's Findings and Recommendations." The parties are advised that failure to file objections 11 within the specified time may waive the right to appeal the District Court's order. Martinez v. 12 Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED. 15 Dated: 6i0kij May 24, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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