Aubert v. Madruga et al

Filing 19

ORDER Denying Plaintiff's Request For Entry Of Default (Doc. 18 ), signed by Magistrate Judge Gary S. Austin on 9/8/2014. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ESS’NN A. AUBERT,

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Plaintiff,

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1:13-cv-01659-GSA-PC
ORDER DENYING PLAINTIFF=S
REQUEST FOR ENTRY OF DEFAULT
(Doc. 18.)

vs.
E. MADRUGA, et al.,

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Defendants.

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I.

BACKGROUND

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Ess’nn A. Aubert (APlaintiff@) is a state prisoner proceeding pro se with this civil rights

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action filed pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action

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on October 15, 2013. (Doc. 1.) This action now proceeds on the initial Complaint, against

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defendants Correctional Officer (C/O) B. Hobbs and C/O E. Madruga (“Defendants”) for

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excessive force in violation of the Eighth Amendment.1 (Id.)

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On October 25, 2013, Plaintiff consented to the jurisdiction of a Magistrate Judge

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pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (Doc. 5.)

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On May 21, 2014, the court dismissed all remaining claims and defendants from this action, based on
Plaintiff=s failure to state a claim. (Doc. 11.)

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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 September 4, 2014, Plaintiff filed a request for entry of default against the

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Defendants. (Doc. 18.)

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II.

ENTRY OF DEFAULT

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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).
Plaintiff’s Request

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A.

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Plaintiff requests entry of default against the Defendants on the grounds that “the court

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files and record . . . show that the Defendants were served [with process on July 23, 2014,]

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more than 21 days have elapsed . . , and “[t]he Defendants have failed to answer or otherwise
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defend as to Plaintiff’s complaint, or serve a copy of any answer or any defense which it might

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have had.” (Request, Doc. 18 at 1-2.)

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B.

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On June 23, 2014, the Court issued an order in this action directing the United States

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Marshal to serve process in this action upon defendants Hobbs and Madruga. (Doc. 13.) On

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July 29, 2014, Defendants filed waivers of service, causing their response to the Complaint to

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be due “within 60 days after 7/2/2014.” (Doc. 15.)

Discussion

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On September 2, 2014, Defendants timely filed an Answer to the Complaint.2

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16.) Therefore, Plaintiff is not entitled to entry of default against defendant Hobbs or defendant

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Madruga, and Plaintiff’s request for entry of default shall be denied.

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III.

(Doc.

CONCLUSION

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Based on the foregoing, and good cause appearing, IT IS HEREBY ORDERED that

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Plaintiff=s request for entry of default against the Defendants, filed on September 4, 2014, is

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DENIED.

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IT IS SO ORDERED.
Dated:

September 8, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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In computing a time period specified in the Federal Rules of Civil Procedure, when the period is stated
in days and the last day of the period is a Saturday, Sunday, or a legal holiday, the period continues to run until the
end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(c). In addition, 3 days
are added for mailing. Fed. R. Civ. P. 6(d). In this instance, “60 days after 7/2/2014” was August 31, 2014,
which was a Sunday. Therefore, the period continued to run until the end of the next day, Monday, September 1,
2014. With 3 days added for mailing, the deadline for Defendants to file a response was Thursday, September 4,
2014.
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