Luna v. Cate, et al.

Filing 49

ORDER DENYING 48 Plaintiff's Request for Entry of Default as to Defendant Wallace as Premature signed by Magistrate Judge Stanley A. Boone on 5/14/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM LUNA,

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Plaintiff,
v.

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MATTHEW CATE, et al.,

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Defendants.

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Case No.: 1:13-cv-00822-SAB (PC)
ORDER DENYING PLAINTIFF’S REQUEST
FOR ENTRY OF DEFAULT AS TO DEFENDANT
WALLACE AS PREMATURE
[ECF No. 48]

Plaintiff William Luna is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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On May 13, 2015, Plaintiff filed a request for entry of default as to Defendant Wallace.

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Rule 12(a)(1)(A)(ii) of the Federal Rules of Civil Procedure provides that a defendant that has

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timely waived service under Rule 4(d) must respond “within 60 days after the request for a waiver was

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sent, or within 90 days after it was sent to the defendant outside any judicial district of the United

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States.” Fed. R. Civ. P. 12(a)(1)(A)(ii).

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Rule 55(a) of the Federal Rules of Civil Procedure requires the Clerk of the Court to 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).

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Plaintiff’s motion must be denied. Pursuant to the waiver of service, Defendant L. Wallace
was required to file a response to the complaint sixty days after March 13, 2015. (ECF No. 42.)
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However, on May 12, 2015, Defendant Wallace, along with other named defendants, filed a motion

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for an extension of time to file a response. (ECF No. 46.) Defendants’ request was granted on May

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13, 2015, and a response to the complaint is due thirty days from the date of service of the order.

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(ECF No. 47.) Accordingly, Plaintiff’s motion for entry of default is be DENIED as premature.

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IT IS SO ORDERED.

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Dated:

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May 14, 2015
UNITED STATES MAGISTRATE JUDGE

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