Branch v. Grannis, et al.,

Filing 66

ORDER DENYING Plaintiff's 50 , 51 , 52 Request for Entry of Default and Motion for Default Judgment against Defendant Umphenour signed by Magistrate Judge Gary S. Austin on 2/22/2012. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LOUIS BRANCH, 12 Plaintiff, 13 14 1:08-cv-01655-AWI-GSA-PC ORDER DENYING PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT AND MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT UMPHENOUR (Docs. 50, 51, 52.) v. UMPHENOUR, et al., 15 Defendants. / 16 17 I. BACKGROUND 18 Louis Branch (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action 19 filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on July 7, 20 2008. (Doc. 1.) This action now proceeds on the Second Amended Complaint filed by Plaintiff on 21 August 25, 2010, against defendant D. Umphenour and two Doe defendants for failure to protect in 22 violation of the Eighth Amendment, and against defendant Umphenour for retaliation in violation 23 of the First Amendment.1 On October 24, 2011, Plaintiff filed a request for entry of default and a 24 motion for default judgment against defendant Umphenour (“Defendant”). (Docs. 50, 51, 52.) 25 /// 26 27 28 1 On May 11, 2011, the Court dismissed all other claims and defendants from this action, based on Plaintiff’s failure to state a claim. (Doc. 29.) The Doe defendants have not been sufficiently identified by Plaintiff to enable service of process by the U.S. Marshal. 1 1 II. ENTRY OF DEFAULT AND DEFAULT JUDGMENT 2 Plaintiff argues that default should be entered against Defendant because Defendant was 3 served with a copy of the summons and complaint and had not pled or issued an answer, although 4 sixty days had passed since the date of service. 5 Entry of default is appropriate as to any party against whom a judgment for affirmative relief 6 is sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil 7 Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P. 55(a). Rule 8 12 of the Federal Rules of Civil Procedure provides, “[A] defendant must serve an answer within 9 21 days after being served with the summons and complaint; or if it has timely waived service under 10 Rule 4(d), within 60 days after the request for a waiver was sent.” Fed. R. Civ. P. 12(a)(1)(A). 11 Under Rule 4(d), a defendant may waive service of a summons by signing and returning a waiver 12 of service. Fed. R. Civ. P. 4(d). If a defendant fails to plead or otherwise defend an action after 13 being properly served with a summons and complaint, a default judgment may be entered pursuant 14 to Rule 55(a) of the Federal Rules of Civil Procedure. 15 III. DISCUSSION 16 In this action, the United States Marshal sent a Waiver of Service form on behalf of Plaintiff 17 to Defendant on July 6, 2011. (See Doc. 46.) Counsel for Defendant signed the form on August 11, 18 2011 and returned it to the Marshal. Id. The Marshal received the completed form on August 22, 19 2011 and filed it at the Court on August 26, 2011. Id. Based on this evidence, the Court concludes 20 that Defendant timely waived service under Rule 4(d), causing the answer to be due on September 21 5, 2011. 22 On August 23, 2011, Defendant filed a motion for an extension of time to file a response to 23 the complaint, and Defendant’s motion was granted by the Court on August 25, 2011. (Docs. 44, 24 45.) Defendant filed a timely motion to dismiss on October 6, 2011. (Doc. 49.) Because Defendant 25 made an appearance in this action on August 23, 2011 via a motion for extension of time, and filed 26 a timely motion to dismiss, the Court finds no evidence that Defendant failed to plead or otherwise 27 defend this action. Therefore, Plaintiff is not entitled to entry of default or default judgment against 28 Defendant. 2 1 IV. CONCLUSION 2 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s request for entry of 3 default and motion for default judgment against Defendant Umphenour, filed on October 24, 2011, 4 are DENIED. 5 6 7 IT IS SO ORDERED. Dated: 6i0kij February 22, 2012 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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