Gray v. Ulit, et al

Filing 42

ORDER signed by Magistrate Judge Gary S. Austin on 3/9/2012 denying 27 Motion for entry of Default against Defendant, Ulit. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CURTIS LE’BARRON GRAY,

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1:10-cv-00357-LJO-GSA-PC

Plaintiff,

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vs.

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ORDER DENYING PLAINTIFF'S MOTION
FOR ENTRY OF DEFAULT AGAINST
DEFENDANT ULIT
(Doc. 27.)

DR. ULIT, et al.,

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Defendants.
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I.

RELEVANT PROCEDURAL HISTORY

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Curtis Le’Barron Gray (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983. This action now proceeds on the First Amended Complaint

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filed by Plaintiff on December 6, 2010, against defendant Dr. Ulit (“Defendant”), for inadequate

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medical care in violation of the Eighth Amendment. (Doc. 9.)

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On March 3, 2011, the Court issued a Discovery/Scheduling order establishing a deadline

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of May 3, 2011 for the parties to file an unenumerated Rule 12(b) motion (“12(b) Motion”). (Doc.

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18.) The deadline has passed, and no party has filed a 12(b) Motion. (See Court Docket.)

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On June 2, 2011, Plaintiff filed a motion for entry of default against Defendant. (Doc. 27.)

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Plaintiff’s motion is now before the Court.

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II.

PLAINTIFF’S MOTION

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Plaintiff argues that the Court should impose sanctions on Defendant under Local Rule 110,

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and enter default against Defendant under Rule 55, for Defendant’s failure to file a 12(b) Motion

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before the expiration of the deadline in the Court’s Discovery/Scheduling Order.
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Local Rule 110, which provides that “[f]ailure ... of a party to comply with ... any order of

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the Court may be grounds for imposition by the Court of ... sanctions,” does not apply in this

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instance, because there is no requirement for Defendant to file a 12(b) motion. The Court’s deadline

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in the Discovery/Scheduling order establishes the latest date when Defendant may file the motion,

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if he so wishes, but Defendant is not required to file a 12(b) Motion. Therefore, Defendant’s failure

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to file a 12(b) Motion is not a failure to comply with a court order, and Defendant is not subject to

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sanctions under Local Rule 110.

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Rule 55 also does not apply in this instance. Under Rule 55, entry of default is appropriate

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for a Defendant who has failed to serve an Answer or other responsive pleading after being served

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with the summons and complaint, “or, if [the Defendant] has timely waived service under Rule 4(d),

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within 60 days after the request for a waiver was sent.” See Fed. R. Civ. P. 55(a). Here, the waiver

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of service was sent on January 11, 2011, Defendant waived service on February 24, 2011, and

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Defendant filed an Answer on March 2, 2011. (Docs. 17, 19.) Therefore, Defendant is not subject

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to entry of default, and Plaintiff’s motion shall be denied.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for entry of

default, filed on June 2, 2011, is DENIED.

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IT IS SO ORDERED.

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Dated:
6i0kij

March 9, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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