Cranford v. Smith
Filing
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ORDER Denying Plaintiff's 10 Motion for Default Judgment signed by Magistrate Judge Gary S. Austin on 12/11/2013. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ARCHIE CRANFORD,
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Plaintiff,
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ORDER DENYING PLAINTIFF=S
MOTION FOR DEFAULT JUDGMENT
(Docs. 10.)
vs.
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1:13-cv-01555-GSA-PC
EBONY SMITH,
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Defendant.
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I.
BACKGROUND
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Archie Cranford (“Plaintiff") is a civil detainee proceeding pro se in this civil rights
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action pursuant to 42 U.S.C. ' 1983. Plaintiff filed this action on September 26, 2013. (Doc.
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1.) On February 11, 2013, 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. 4.)
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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 November 21, 2013, Plaintiff filed the First Amended Complaint. (Doc. 9.)
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Now pending is Plaintiff=s motion for default judgment against defendant Smith, filed
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on December 9, 2013. (Doc. 10.)
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II.
ENTRY OF DEFAULT AND DEFAULT JUDGMENT
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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, a
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default judgment may be entered pursuant to Rule 55(a) of the Federal Rules of Civil
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Procedure.
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Once default has been entered against a defendant, the court may, A[f]or good cause
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shown . . . set aside an entry of default. . . .@ Fed. R. Civ. P. 55(c). AThe court=s discretion is
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especially broad where ... it is entry of default that is being set aside.@ O=Connor v. State of
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Nevada, 27 F.3d 357, 364 (9th Cir. 1994) (quoting Mendoza v. Wight Vineyard Mgmt., 783
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F.2d 941, 945 (9th Cir. 1986)); see also Brady v. United States, 211 F.3d 499, 504 (9th Cir.
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2000). Default is generally disfavored. In re Hammer, 940 F.2d 524, 525 (9th Cir. 1991);
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Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009).
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Plaintiff’s Motion
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Plaintiff requests default judgment against defendant Ebony Smith, “for failure to
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answer plaintiffs amended complaint within the given 30 days as followes (sic) pursuant to rule
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34 Fed.R.Civ.P. (Motion, Doc. 10.)
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Discussion
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Plaintiff=s motion is premature because defendant Smith has not been served in this
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action. The Court will, sua sponte, direct the United States Marshal to serve the complaint only
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after the court has screened the complaint as required by 28 U.S.C. ' 1915A and determined
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that it contains cognizable claims for relief against the named defendants. Thus, the time limits
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set forth in Rule 4 are inapplicable until such time as the Court determines the complaint states
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cognizable claims for relief.
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Complaint, Plaintiff=s request for entry of default is premature and shall be denied as such.
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III.
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As the Court has yet to screen Plaintiff=s First Amended
CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff=s motion for default
judgment, filed on December 9, 2013, is DENIED as premature.
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IT IS SO ORDERED.
Dated:
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December 11, 2013
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:
6i0kij8d
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