Carpenter v. Sullivan, et al.

Filing 151

ORDER DENYING 97 Motion Ordering Answer and For Default, signed by Magistrate Judge Gerald B. Cohn on 10/26/2011. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIE LEE CARPENTER,
CASE NO.: 1:07-cv-00114-AWI-GBC (PC)

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Plaintiff,
v.

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W. J. SULLIVAN, et al.,

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ORDER DENYING MOTION ORDERING
ANSWER AND FOR DEFAULT
(Doc. 97)

Defendants.
______________________________________/

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Plaintiff Willie Lee Carpenter, a state prisoner proceeding pro se and in forma pauperis, filed this
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civil rights action pursuant to 42 U.S.C. § 1983 on January 22, 2007. On January 18, 2011, Plaintiff
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filed a motion requesting that the Court order Defendant Martinez to reply to Plaintiff’s complaint and
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for entry of default. (Doc. 97). On January 31, 2011, Defendants filed an opposition. (Doc. 100). On
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April 14, 2011, summons returned executed, indicating that Defendant Martinez was served on April
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11, 2011. (Doc. 116). On April 25, 2011, Defendant Martinez filed an answer. (Doc. 117).
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“Without a proper basis for jurisdiction, or in the absence of proper service of process, the district
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court has no power to render any judgment against the defendant’s person or property unless the
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defendant has consented to jurisdiction or waived the lack of process.” S.E.C. v. Ross, 504 F.3d
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1138-39 (9th Cir. 2007); accord Hutchinson v. United States, 677 F.2d 1322, 1328 (9th Cir. 1982).
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Since Defendant was not yet served with the complaint at the time of Plaintiff’s motion for answer and
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default judgment, the Court lacked jurisdiction to grant the relief Plaintiff requested and Plaintiff’s
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motion was premature. Moreover, once Defendant Martinez was served, Defendant Martinez filed a

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timely answer to the complaint on April 25, 2011, so Plaintiff’s motion is now moot.

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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for answer and default judgment
filed on January 18, 2011, is DENIED. (Doc. 97).

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IT IS SO ORDERED.

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Dated:
0jh02o

October 26, 2011
UNITED STATES MAGISTRATE JUDGE

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