Gray v. Ulit, et al
ORDER signed by Magistrate Judge Gary S. Austin on 3/9/2012 denying 27 Motion for entry of Default against Defendant, Ulit. (Lundstrom, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CURTIS LE’BARRON GRAY,
ORDER DENYING PLAINTIFF'S MOTION
FOR ENTRY OF DEFAULT AGAINST
DR. ULIT, et al.,
RELEVANT PROCEDURAL HISTORY
Curtis Le’Barron Gray (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights
action pursuant to 42 U.S.C. § 1983. This action now proceeds on the First Amended Complaint
filed by Plaintiff on December 6, 2010, against defendant Dr. Ulit (“Defendant”), for inadequate
medical care in violation of the Eighth Amendment. (Doc. 9.)
On March 3, 2011, the Court issued a Discovery/Scheduling order establishing a deadline
of May 3, 2011 for the parties to file an unenumerated Rule 12(b) motion (“12(b) Motion”). (Doc.
18.) The deadline has passed, and no party has filed a 12(b) Motion. (See Court Docket.)
On June 2, 2011, Plaintiff filed a motion for entry of default against Defendant. (Doc. 27.)
Plaintiff’s motion is now before the Court.
Plaintiff argues that the Court should impose sanctions on Defendant under Local Rule 110,
and enter default against Defendant under Rule 55, for Defendant’s failure to file a 12(b) Motion
before the expiration of the deadline in the Court’s Discovery/Scheduling Order.
Local Rule 110, which provides that “[f]ailure ... of a party to comply with ... any order of
the Court may be grounds for imposition by the Court of ... sanctions,” does not apply in this
instance, because there is no requirement for Defendant to file a 12(b) motion. The Court’s deadline
in the Discovery/Scheduling order establishes the latest date when Defendant may file the motion,
if he so wishes, but Defendant is not required to file a 12(b) Motion. Therefore, Defendant’s failure
to file a 12(b) Motion is not a failure to comply with a court order, and Defendant is not subject to
sanctions under Local Rule 110.
Rule 55 also does not apply in this instance. Under Rule 55, entry of default is appropriate
for a Defendant who has failed to serve an Answer or other responsive pleading after being served
with the summons and complaint, “or, if [the Defendant] has timely waived service under Rule 4(d),
within 60 days after the request for a waiver was sent.” See Fed. R. Civ. P. 55(a). Here, the waiver
of service was sent on January 11, 2011, Defendant waived service on February 24, 2011, and
Defendant filed an Answer on March 2, 2011. (Docs. 17, 19.) Therefore, Defendant is not subject
to entry of default, and Plaintiff’s motion shall be denied.
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for entry of
default, filed on June 2, 2011, is DENIED.
IT IS SO ORDERED.
March 9, 2012
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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