Lewis v. Alison et al

Filing 32

ORDER Denying 28 Plaintiff's Request for Entry of Default; ORDER Granting Defendants' Motion for 45-Day Extension of Time to File Responsive Pleading 30 , signed by Magistrate Judge Barbara A. McAuliffe on 4/17/14. (Verduzco, M)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 HOMER TYRONE LEWIS, 10 11 12 Plaintiff, v. KATHLEEN ALISON, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) 1:12-cv-00856-LJO-BAM (PC) ORDER DENYING PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT (ECF No. 28) ORDER GRANTING DEFENDANTS’ MOTION FOR 45-DAY EXTENSION OF TIME TO FILE RESPONSIVE PLEADING (ECF No. 30) 15 16 Plaintiff Homer Tyrone Lewis (“Plaintiff”) is a state prisoner proceeding in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 10, 2013, the 18 Court screened Plaintiff’s third amended complaint and found that it stated a claim against 19 Defendants Alison, Adams, Junious, Denny, Parra and Garza for retaliation in violation of the 20 First Amendment. On December 23, 2013, the Court directed the United States Marshal to serve 21 the third amended complaint on Defendants Alison, Adams, Junious, Denny, Parra and Garza. 22 (ECF No. 25.) 23 24 25 26 On March 24, 2014, Plaintiff filed the instant request for entry of default against Defendant Adams. (ECF No. 28.) On March 25, 2014, waivers of service were returned for Defendants Alison, Adams, Junious, Parra and Garza. The waivers were signed on March 20, 2014. (ECF No. 29.) 27 On April 1, 2014, Defendant Adams, along with Defendants Alison, Garza, Junious and 28 Parra, requested a forty-five day extension of time to file a responsive pleading. (ECF No. 30.) 1 1 The following day, on April 2, 2014, Defendant Adams filed an opposition to the motion for 2 default. (ECF No. 31.) 3 Plaintiff moves for the Court to enter default against Defendant Adams. Entry of default 4 is appropriate as to any party against whom a judgment for affirmative relief is sought that has 5 failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure and 6 where that fact is made to appear by affidavit or otherwise. Fed. R. Civ. P. 55(a). However, in 7 this action, Defendant Adams appeared on April 1, 2014, when he requested an extension of time 8 to file a responsive pleading, and on April 2, 2014, when he opposed entry of default. (ECF Nos. 9 30, 31.) Defendant Adams’ appearance precludes any entitlement to entry of default or default 10 judgment. Fed. R. Civ. P. 55; Franchise Holding II, LLC v. Huntington Rests. Grp., Inc., 375 11 F.3d 922, 927-28 (9th Cir. 2004) (if party appeared, clerk’s entry of default void ab initio). 12 Additionally, a party may have the entry of default set aside upon a showing of good 13 cause. Fed. R. Civ. P. 55(c). In determining if good cause exists to set aside the default 14 judgment, “the court must consider three factors: (1) whether the party seeking to set aside the 15 default engaged in culpable conduct that led to the default; (2) whether it had no meritorious 16 defense; or (3) whether reopening the default judgment would prejudice the other party.” United 17 States v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 18 2010) (internal punctuation and citations omitted). When a party is seeking relief from default 19 prior to the entry of default judgment the test is liberally applied. Id. at 1091 n.1. 20 Here, if the Court entered default, it could easily be set aside. See, e.g., Knox v. 21 Woodford, No. 1:07-cv-00144-AWI-DLB PC, 2010 WL 1956739, *1 (E.D.Cal. May 14, 2010). 22 Defendant Adams is represented by the Attorney General’s Office. The Attorney General’s 23 Office executed a waiver of service on March 20, 2014. Within less than two weeks, the 24 Attorney General’s officer requested an extension of time to respond to the complaint and 25 opposed the entry of default on behalf of Defendant Adams. The Court finds no evidence of 26 culpable conduct on the part of Defendant Adams. Counsel is currently obtaining records to 27 address Plaintiff’s allegations. Thus, there is no indication that Defendant Adams lacks a 28 2 1 meritorious defense. Finally, Plaintiff will not suffer any prejudice as discovery has yet to open 2 in this action. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Plaintiff’s motion for default, filed March 24, 2014, is DENIED; 5 2. Defendants’ motion for a forty-five day extension of time to file a responsive 6 7 pleading is GRANTED; and 3. Defendants shall file and serve a responsive pleading on or before May 1, 2014. 8 9 10 IT IS SO ORDERED. Dated: /s/ Barbara April 17, 2014 11 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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