Cato v. Silva et al

Filing 19

ORDER IMPOSING Entry of Default Against Defendant Dumont, signed by Magistrate Judge Stanley A. Boone on 1/29/2015. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES CATO, JR.,

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Plaintiff,

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v.

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G. SILVA, et al.,

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Defendants.

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Case No.: 1:14-cv-00564-LJO-SAB (PC)
ORDER IMPOSING ENTRY OF DEFAULT
AGAINST DEFENDANT DUMONT
[ECF Nos. 16, 18]

Plaintiff James Cato, Jr. is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On July 24, 2014, the Court found that Plaintiff stated a cognizable retaliation claim against

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Defendant Dumont, and all other claims and defendants were dismissed from the action for failure to

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state a cognizable claim. (ECF No.

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On August 18, 2014, the Court directed the United States Marshal to serve the complaint on

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Defendant Dumont. On September 23, 2014, the USM-285 form was returned and service was

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executed on Defendant on

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Entry of default is appropriate as to any party against whom a judgment for affirmative relief is

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sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure

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and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P. 55(a). Rule 12 of the

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Federal Rules of Civil Procedure provides, “a defendant must serve an answer within 21 days after
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being served with the summons and complaint; or if it has timely waived service under Rule 4(d),

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within 60 days after the request for a waiver was sent.” Fed. R. Civ. P. 12(a)(1)(A). Under Rule 4(d),

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a defendant may waive service of a summons by signing and returning a waiver of service. Fed. R.

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Civ. P. 4(d).
Before a request for entry of default will be granted, the court must be satisfied from the

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request and accompanying documentation that (1) defendant has been served with summons or has

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agreed to waive service; (2) the time allowed by law for responding has expired; (3) defendant has

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failed to file a pleading or motion permitted by law; and (4) defendant is neither a minor nor an

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incompetent person. See Fed. R. Civ. P. 55(b)(1); see also First American Bank, N.A. v. United

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Equity Corp. 89 F.R.D. 81, 86 (D.C.D.C. 1981).
In this instance, the United States Marshal returned the USM-285 form indicating that

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Defendant J. Dumont was served by mail on August 22, 2014. (ECF No. 16.) Defendant Dumont

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waived service of the summons in this action on September 19, 2014, and acknowledged that a

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response to the complaint was due within sixty days after August 22, 2014, i.e. October 21, 2014.

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(Id.) However, to date, no response has been filed by Defendant Dumont.
On January 20, 2015, in response to order by the Court, Plaintiff filed a request for entry of

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default against Defendant Dumont. Because it is clear that Defendant Dumont was properly and

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successfully served, entry of default is appropriate. Fed. R. Civ. P. 55(b).

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Accordingly, IT IS HEREBY ORDERED that:

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The Clerk of Court shall enter default under Rule 55(a) as to Defendant Dumont; and

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The Clerk of Court shall electronically serve a copy of this order on counsel for

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Defendant Dumont, John Walters, Deputy Attorney General at

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[e-mail].

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IT IS SO ORDERED.

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Dated:

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January 29, 2015
UNITED STATES MAGISTRATE JUDGE

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