Calloway v. Kelley et al

Filing 70

ORDER DISCHARGING 64 Motion for Order to Show Cause; ORDER DECLINING 67 Motion for Default Judgment Against Defendants: Talisman and Fieitz, signed by Magistrate Judge Stanley A. Boone on 10/14/14. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,

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Plaintiff,
v.
G. KELLEY, et al.,
Defendants.

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Case No.: 1:11-cv-01090-LJO-SAB (PC)
ORDER DISCHARGING ORDER TO SHOW
CAUSE AND DECLINING TO ENTER DEFAULT
JUDGMENT AGAINST DEFENDANTS
TALISMAN AND FIEITZ
[ECF Nos. 60, 64, 66, 67]

Plaintiff Jamisi Jermaine Calloway is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
On September 4, 2014, the Court issued an order for Plaintiff to show cause why entry of
default should not be entered against Defendants Talisman and Fritz. (ECF No. 60.)

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On September 5, 2014, Defendants Talisman and Fritz filed an answer to the complaint.

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Plaintiff filed a response to the order to show cause on September 17, 2014. (ECF No. 64.)

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On September 19, 2014, Plaintiff filed objections to Defendants Talisman and Fritz’s answer to the

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complaint. (ECF No. 65.)

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On September 29, 2014, Plaintiff filed a motion for entry of default. (ECF No. 67.)

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Defendants filed an opposition to Plaintiff’s motion for entry of default on September 30, 2014. (ECF

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No. 66.) Plaintiff filed a reply on October 9, 2014. (ECF No. 69.)

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In their opposition, defense counsel submits that when the Court issued the order for Plaintiff

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to show cause why entry of default should not be entered against Defendants Talisman and Fritz, these

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Defendants had yet to formally appear in this action, despite the filing of waivers of service on their

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behalf. (ECF No. 57.) Defense counsel submits that the “failure to appear occurred as a result of a

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mistake on the part of the Office of the Attorney General concerning the calendaring of a due date for

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a responsive pleading for these Defendants, because sixty days already had passed since these

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Defendants received copies of the suit papers.” (ECF No. 66, at 2.) In any event, Defendants filed an

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answer on September 5, 2014.
Rule 55(a) of the Federal Rules of Civil Procedure requires that the Clerk of the Court enter

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default “when a party against whom a judgment for affirmative relief is sought has failed to plead or

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otherwise defend, and that failure is shown by affidavit or otherwise.” Fed. R. Civ. P. 55(a). Rule

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55(b)(2) provides that the Court may grant a default judgment after default has been entered by the

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Clerk of the Court.
A defendant’s default does not automatically entitle the plaintiff to a court-ordered judgment.

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See Draper v. Coombs, 792 F.2d 915, 924-925 (9th Cir. 1986). Rather, granting or denying relief is

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entirely within the court’s discretion. Id.
Plaintiff argues that default should be entered because Defendants’ answer was untimely,

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despite their knowledge. Defendants concede that their answer was not timely filed, due to a

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calendaring error. Defendants argue that entry of default is inappropriate because they have clearly

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indicated their intent to defend this action by inadvertently filing a late answer.
In this instance, the Court finds entry of default not warranted. Defendants’ delay in filing an

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answer was due to a calendaring error, which the Court finds to be excusable neglect, and Plaintiff was

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not prejudiced by the delay. By filing a delayed answer, Defendants have sufficiently indicated their

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intent to defend this action. “Cases should be decided upon their merits whenever reasonably

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possible. Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). Therefore, Plaintiff’s request for

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entry of default shall be denied.

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Based on the foregoing,

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IT IS HEREBY ORDERED that:

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The order to show cause issued September 4, 2014, is DISCHARGED; and

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Plaintiff’s request for entry of default is DENIED.

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IT IS SO ORDERED.

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Dated:

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October 14, 2014
UNITED STATES MAGISTRATE JUDGE

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