Goolsby v. Gonzales et al

Filing 22

ORDER DENYING Plaintiff's 20 21 Requests for Entry of Default and to Open Discovery signed by Magistrate Judge Gary S. Austin on 10/11/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS GOOLSBY,

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Plaintiff,

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1:11-cv-00394-GSA-PC
ORDER DENYING PLAINTIFF=S
REQUESTS FOR ENTRY OF DEFAULT
AND TO OPEN DISCOVERY
(Docs. 20, 21.)

vs.
FERNANDO GONZALES, et al.,

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Defendants.

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I.

BACKGROUND
Thomas Goolsby (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action filed pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this action on March 8, 2011. (Doc. 1.) On May 4, 2011, Plaintiff consented to

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Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. ' 636(c), and no other parties

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have made an appearance. (Doc. 6.) Therefore, pursuant to Appendix A(k)(4) of the Local

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Rules of the Eastern District of California, the undersigned shall conduct any and all

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proceedings in the case until such time as reassignment to a District Judge is required. Local

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Rule Appendix A(k)(3). This case now proceeds on Plaintiff’s First Amended Complaint, filed

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on September 17, 2012, against defendant T. Steadman for retaliation in violation of the First

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Amendment.1 (Doc. 13.)

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On April 22, 2013, the court dismissed all remaining claims and defendants from this action
based on Plaintiff’s failure to state a claim. (Doc. 17.)
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On September 6, 2013, Plaintiff filed a request for the court to open the discovery phase

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for this action. (Doc. 20.) On October 9, 2013, Plaintiff filed a request for entry of default

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against defendant T. Steadman. (Doc. 21.) Plaintiff’s two requests are now before the court.

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III.

DISCOVERY

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Plaintiff requests a court order commencing discovery, because it has been more than

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four months since the court ordered service to be completed by the U.S. Marshals Service

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(“Marshal”), and Plaintiff is eager to begin discovery.

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Plaintiff is advised that the court will issue a scheduling order setting a schedule for

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discovery after defendant Steadman has filed an Answer to the complaint. To date, defendant

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Steadman has not filed an Answer. (Court Record.) Plaintiff has not shown good cause for the

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court to allow him to conduct early discovery.

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II.

ENTRY OF DEFAULT

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Entry of default is appropriate as to any party against whom a judgment for affirmative

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relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of

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Civil Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P.

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55(a). Rule 12 of the Federal Rules of Civil Procedure provides, A[A] defendant must serve an

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answer within 21 days after being served with the summons and complaint; or if it has timely

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waived service under Rule 4(d), within 60 days after the request for a waiver was sent.@ Fed.

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R. Civ. P. 12(a)(1)(A). Under Rule 4(d), a defendant may waive service of a summons by

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signing and returning a waiver of service. Fed. R. Civ. P. 4(d). If a defendant fails to plead or

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otherwise defend an action after being properly served with a summons and complaint, a

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default judgment may be entered pursuant to Rule 55(a) of the Federal Rules of Civil

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Procedure.

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Plaintiff’s Request

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Plaintiff requests entry of default against defendant Steadman. Plaintiff asserts that on

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May 6, 2013, the court ordered the Marshal to serve defendant Steadman with a copy of the

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summons and complaint, and defendant Steadman has been served. Plaintiff argues that default

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///
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should be entered against the defendant because approximately five months have elapsed, and

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defendant Steadman has not filed a responsive pleading or made an appearance.

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Discussion

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Court records reflect that on May 6, 2013, the court issued an order directing the

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Marshal to serve process in this action upon defendant Steadman. (Doc. 19.) To date, the court

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has not received any notice that defendant Steadman was served or that service by the Marshal

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was unsuccessful. (Court Record.) Plaintiff has not shown that Defendants were properly

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served with process and failed to plead or otherwise defend pursuant to Rule 55(a). Fed. R.

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Civ. P. 55(a). Therefore, Plaintiff’s request for entry of default must be denied.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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2013, is DENIED; and

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Plaintiff’s request for a court order opening discovery, filed on September 6,

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Plaintiff=s request for entry of default against defendant Steadman, filed on

October 9, 2013, is DENIED.

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IT IS SO ORDERED.
Dated:

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October 11, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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