Cranford v. Smith

Filing 11

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ARCHIE CRANFORD, 12 Plaintiff, 13 ORDER DENYING PLAINTIFF=S MOTION FOR DEFAULT JUDGMENT (Docs. 10.) vs. 14 15 1:13-cv-01555-GSA-PC EBONY SMITH, 16 Defendant. 17 18 I. BACKGROUND 19 Archie Cranford (“Plaintiff") is a civil detainee proceeding pro se in this civil rights 20 action pursuant to 42 U.S.C. ' 1983. Plaintiff filed this action on September 26, 2013. (Doc. 21 1.) On February 11, 2013, Plaintiff consented to Magistrate Judge jurisdiction in this action 22 pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (Doc. 4.) 23 Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of 24 California, the undersigned shall conduct any and all proceedings in the case until such time as 25 reassignment to a District Judge is required. Local Rule Appendix A(k)(3). 26 On November 21, 2013, Plaintiff filed the First Amended Complaint. (Doc. 9.) 27 Now pending is Plaintiff=s motion for default judgment against defendant Smith, filed 28 on December 9, 2013. (Doc. 10.) 1 1 II. ENTRY OF DEFAULT AND DEFAULT JUDGMENT 2 Entry of default is appropriate as to any party against whom a judgment for affirmative 3 relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of 4 Civil Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P. 5 55(a). Rule 12 of the Federal Rules of Civil Procedure provides, A[A] defendant must serve an 6 answer within 21 days after being served with the summons and complaint; or if it has timely 7 waived service under Rule 4(d), within 60 days after the request for a waiver was sent.@ Fed. 8 R. Civ. P. 12(a)(1)(A). Under Rule 4(d), a defendant may waive service of a summons by 9 signing and returning a waiver of service. Fed. R. Civ. P. 4(d). If a defendant fails to plead or 10 otherwise defend an action after being properly served with a summons and complaint, a 11 default judgment may be entered pursuant to Rule 55(a) of the Federal Rules of Civil 12 Procedure. 13 Once default has been entered against a defendant, the court may, A[f]or good cause 14 shown . . . set aside an entry of default. . . .@ Fed. R. Civ. P. 55(c). AThe court=s discretion is 15 especially broad where ... it is entry of default that is being set aside.@ O=Connor v. State of 16 Nevada, 27 F.3d 357, 364 (9th Cir. 1994) (quoting Mendoza v. Wight Vineyard Mgmt., 783 17 F.2d 941, 945 (9th Cir. 1986)); see also Brady v. United States, 211 F.3d 499, 504 (9th Cir. 18 2000). Default is generally disfavored. In re Hammer, 940 F.2d 524, 525 (9th Cir. 1991); 19 Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009). 20 Plaintiff’s Motion 21 Plaintiff requests default judgment against defendant Ebony Smith, “for failure to 22 answer plaintiffs amended complaint within the given 30 days as followes (sic) pursuant to rule 23 34 Fed.R.Civ.P. (Motion, Doc. 10.) 24 Discussion 25 Plaintiff=s motion is premature because defendant Smith has not been served in this 26 action. The Court will, sua sponte, direct the United States Marshal to serve the complaint only 27 after the court has screened the complaint as required by 28 U.S.C. ' 1915A and determined 28 that it contains cognizable claims for relief against the named defendants. Thus, the time limits 2 1 set forth in Rule 4 are inapplicable until such time as the Court determines the complaint states 2 cognizable claims for relief. 3 Complaint, Plaintiff=s request for entry of default is premature and shall be denied as such. 4 III. 5 6 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. 7 8 9 10 IT IS SO ORDERED. Dated: 11 12 13 December 11, 2013 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 6i0kij8d 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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