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