Baker v. Alva et al

Filing 24

ORDER Denying 23 Request for Entry of Default, signed by Magistrate Judge Michael J. Seng on 02/04/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TOMMIE LEE BAKER,

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Plaintiff,

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CASE NO. 1:14-cv-1020-AWI-MJS (PC)
ORDER DENYING
ENTRY OF DEFAULT

REQUEST

FOR

v.
(ECF NO. 23)
J. ALVA, et al.,

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Defendants.

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I.

PROCEDURAL HISTORY

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 4 & 9.) The action

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proceeds on Plaintiff’s Eight Amendment failure to protect claim against Defendants

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Alva, Mendoza, Franco, and O’Daniels. (ECF Nos. 11 & 13.)

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On November 20, 2014, the Court ordered service upon Defendants by the U.S.

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Marshals Service. (ECF No. 17.) On December 19, 2014, the Court received waivers of

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service of summons from all four Defendants; the requests for waiver were sent on

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December 16, 2014. (ECF No. 13.) Defendants answers were due February 17, 2015.

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(Id.) Defendants filed their answer on January 16, 2015. (ECF No. 19.)
Before this Court is Plaintiff’s request to enter default against Defendants based

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on their failure to timely answer or otherwise respond to his complaint. (ECF No. 23.)

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II.

LEGAL STANDARD

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In general, “[a] summons must be served with a copy of the complaint.” Fed. R.

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Civ. P. 4(c)(1). However, many defendants have “a duty to avoid unnecessary expenses

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of serving the summons.” Fed. R. Civ. P. 4(d)(1). “The plaintiff may notify such a

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defendant that an action has been commenced and request that the defendant waive

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service of a summons.” Id. Rule 12(a)(1)(A)(ii) of the Federal Rules of Civil Procedure

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provides that a defendant that has timely waived service under Rule 4(d) must respond

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“within 60 days after the request for a waiver was sent, or within 90 days after it was sent

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to the defendant outside any judicial district of the United States.”

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Rule 55(a) of the Federal Rules of Civil Procedure requires that the Clerk of the

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Court enter default “when a party against whom a judgment for affirmative relief is

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sought has failed to plead or otherwise defend, and that failure is shown by affidavit or

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otherwise.” Rule 55(b)(2) provides that the Court may grant a default judgment after

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default has been entered by the Clerk of the Court.

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III.

ANALYSIS

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Plaintiff is not entitled to entry of default because Defendants timely filed an

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answer to the complaint. (ECF No.19.) Pursuant to Rule 12, Defendants had sixty days

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after the request for waiver was sent to file their responsive pleading. The request for

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waiver was sent on December 16, 2014 (ECF No. 18). Defendants’ answer was due on

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February 17, 2015. Defendants filed their answer on January 16, 2015. (ECF No. 19.)

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The answer was timely.

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IV.

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ORDER
Accordingly, Plaintiff’s request for entry of default is HEREBY DENIED.

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IT IS SO ORDERED.
Dated:

February 4, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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