Shepard v. Podsakoff et al

Filing 17

ORDER Denying Plaintiff's 15 Request for Entry of Default signed by Magistrate Judge Gary S. Austin on 12/03/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER DENYING PLAINTIFF’S
REQUEST FOR ENTRY OF DEFAULT
(Doc. 15.)

Plaintiff,

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1:12-cv-00495-GSA-PC

LAMONT SHEPARD,

vs.
M. PODSAKOFF, et al.,

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Defendants.

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I.

BACKGROUND

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Lamont Shepard (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. §1983. This case now proceeds on Plaintiff’s

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original Complaint, filed on April 2, 2012, against defendant M. Podsakoff for retaliation

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against Plaintiff in violation of the First Amendment.1 (Doc. 1.)

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On April 10, 2012, Plaintiff consented to Magistrate Judge jurisdiction in this action

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pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (Doc. 5.)

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On September 29, 2014, the court issued an order dismissing all other claims and defendants from this
action based on Plaintiff’s failure to state a claim. (Doc. 12.)
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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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On December 1, 2014, Plaintiff filed a request for entry of default against defendant

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Podsakoff (“Defendant”). (Doc. 15.)

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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, default

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may be entered pursuant to Rule 55(a) of the Federal Rules of Civil Procedure.

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III.

DISCUSSION

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Plaintiff argues that Defendant failed to file a timely response to the Complaint, in

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violation of Rules 55 and 12(a) of the Federal Rules of Civil Procedure. Plaintiff asserts that

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Defendant was served with process in October 2014, that more than 20 days have elapsed since

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Defendant was served, and that Defendant has not filed a timely answer or otherwise defended

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against the Complaint. The record in this action shows otherwise. On December 1, 2014, a

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Waiver of Service by Defendant was filed, indicating that Defendant’s “answer or motion

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under Rule 12” is due “within 60 days after 10/24/14.” (Doc. 16.)

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Defendant’s deadline to respond to the Complaint has not expired, and Plaintiff is not entitled

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to entry of default under Rule 55 against Defendant on this ground. Therefore, Plaintiff’s

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request shall be denied.

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Based on this record,

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IV.

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

default against Defendant Podsakoff, filed on December 1, 2014, is DENIED.

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IT IS SO ORDERED.
Dated:

December 3, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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