Holmes v. Lepe et al

Filing 30

ORDER Denying Motions for Default 26 , 27 , signed by Magistrate Judge Michael J. Seng on 02/26/14. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRANDON JAQUAY HOLMES,
Plaintiff,

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ORDER DENYING MOTIONS FOR
DEFAULT

v.
ECF No. 26, 27
CHRISTIAN LEPE, et al.,
Defendants.

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Case No. 1:12-cv-01649-AWI-MJS (PC)

Plaintiff Brandon Jaquay Holmes (“Plaintiff”) is a prisoner proceeding pro se in a

18 civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau
19 of Narcotics, 403 U.S. 388 (1971).
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Plaintiff initiated this action on October 9, 2012. (ECF No. 1.) On May 21, 2013,

21 the Court found that Plaintiff stated a cognizable Eighth Amendment claim against
22 Defendant Lepe. (ECF Nos. 10, 15-16.) On October 2, 2013, the Court ordered the
23 United States Marshal to serve Defendant Lepe. (ECF No. 20.) Defendant Lepe was
24 served on November 6, 2013, and his answer was due on November 27, 2013. (ECF
25 No. 22.) Defendant Lepe filed an Answer on January 10, 2014. (ECF No. 23.)
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Plaintiff has filed two motions for an entry of default judgment against Defendant

27 Lepe due to Defendant Lepe’s failure to timely respond to Plaintiff’s Complaint. (ECF
28 Nos. 26, 27.)

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As a general rule, default is disfavored and cases should be decided on their

2 merits whenever reasonably possible. Westchester Fire Ins. Co. v. Mendez, 585 F.3d
3 1183, 1189 (9th Cir. 2009) (quotation marks omitted); TCI Group Life Ins. Plan v.
4 Knoebber, 244 F.3d 691, 693 (9th Cir. 2001); Eitel v. McCool, 782 F.3d 1470, 1472 (9th
5 Cir. 1986).

In this instance, Defendant Lepe’s delay in filing his answer was not

6 significant. The impact of the delay was minimal. Even if default had been entered
7 before Defendant Lepe filed his Answer, it would likely have needed to be vacated
8 because “[j]udgment by default is a drastic step appropriate only in extreme
9 circumstances; a case should whenever possible, be decided on the merits.” United
10 States v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085 (9th Cir.
11 2010), citing Falk v. Allen, 739 F.2d 461, 463 (9th Cir.1984).

Although Defendant

12 Lepe’s answer was late, Plaintiff has not been significantly impacted by this delay and
13 Plaintiff’s motions should be denied.
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Accordingly, Plaintiff having presented no basis upon which a default could be
taken against Defendant Lepe, his motions for a default judgment is DENIED.

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IT IS SO ORDERED.
Dated:

February 26, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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