Martinez v. Delio et al

Filing 22

ORDER Granting 21 Plaintiff's Request for Status, signed by Magistrate Judge Michael J. Seng on 1/19/13. (Verduzco, M)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

BERNARD MARTINEZ,

CASE No. 1:11-cv-01088-LJO-MJS (PC)

10
Plaintiff,

ORDER GRANTING PLAINTIFF’S
REQUEST FOR STATUS

11
v.

(ECF No. 21)

12
13

DR. L. A. DELIO, et al.,

14
Defendants.
15
/
16
17

I.

PROCEDURAL HISTORY

18

On July 1, 2011, Plaintiff Bernard Martinez, a state prisoner proceeding pro se

19

and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF

20

No. 1.)

21

This matter proceeds on Plaintiff’s First Amended Complaint (First Am. Compl.,

22

ECF No. 15), against Defendants Martha, Sonia, and Nguyen on Eighth Amendment

23

claims. (Order Finding Cognizable Claim, ECF No. 17.)

24

On December 6, 2012, the Court issued its order directing service upon

25

Defendants Martha, Sonia, and Nguyen by the U.S. Marshals Service, with a service

26

deadline of April 8, 2013. (Order Directing Service, ECF No. 20.)

27
28

Pending before the Court is Plaintiff’s status request filed January 14, 2013,
seeking direction regarding entry of default. (Req. Entry Default, ECF No. 21.)
1

1

II.

LEGAL STANDARD
Rule 55(a) of the Federal Rules of Civil Procedure requires that the Clerk of the

2
3

Court enter default “when a party against whom a judgment for affirmative relief is

4

sought has failed to plead or otherwise defend, and that failure is shown by affidavit or

5

otherwise.” Fed. R. Civ. P. 55(a). Rule 55(b)(2) provides that the Court may grant a

6

default judgment after default has been entered by the Clerk of the Court.

7

III.

The Court Clerk has forwarded Plaintiff’s service documents to the U.S. Marshal

8
9

ANALYSIS

for service upon Defendants Martha, Sonia and Nguyen by April 8, 2013.
Plaintiff is not entitled to entry of default because he has not demonstrated that

10
11

these Defendants have been served with process. Absent service, the Court has no

12

jurisdiction over a defendant. Action Embroidery Corp. v. Atlantic Embroidery, Inc., 368

13

F.3d 1174, 1177 (9th Cir. 2004); see also Harry and David v. J & P Acquisition, Inc.,

14

865 F.Supp.2d 494, 500 (D. Del. 2011) (absent proper service a defendant is not legally

15

called to answer and entry of default is void).
There is no evidence that the U.S. Marshall has yet effected service of process

16
17

upon any Defendant and thereby triggered Defendant’s legal obligation to respond to

18

Plaintiff’s First Amended Complaint. Fed. R. Civ. P. 4(d), (e); Fed. R. Civ. P. 55(a). The

19

Court’s December 6, 2012 order for Marshall’s service does not constitute service of

20

process, but rather directs the U.S. Marshall to effectuate service prior to the applicable

21

service deadline of April 8, 2013.1
Plaintiff’s request for default is premature. Until and unless Defendant is in

22
23

default, Plaintiff may not seek entry of default or judgment thereon.
No action by Plaintiff is required at this time.

24
25

/////

26
27
28

1
The Court takes judicial notice of its own records. United States v. Wilson, 631 F.2d 118, 119
(9th Cir. 1980).

2

1

IV.

Plaintiff’s motion for status (ECF No. 21) is GRANTED, and the foregoing

2
3

ORDER

constitutes a report of that status.

4
5

IT IS SO ORDERED.

6

Dated:
ci4d6

January 19, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3