Thomas v. Rene Wilkinson , et al

Filing 46

ORDER DENYING Plaintiff's Request for Default Judgment 35 , signed by Magistrate Judge Gary S. Austin on 1/18/17. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSH THOMAS,

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Plaintiff,

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1:15-cv-00527-LJO-GSA-PC
ORDER DENYING PLAINTIFF’S
REQUEST FOR DEFAULT JUDGMENT

vs.
(ECF No. 35.)
WILKINSON, et al.,

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Defendants.

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I.

BACKGROUND

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Josh Thomas (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983. Plaintiff filed the complaint commencing this action on April

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21, 2014, at the Fresno County Superior Court, case number 14CECG01710. On April 2, 2015,

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defendant Jasmine A. Tehrani removed the complaint to federal court pursuant to 28 U.S.C. §

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1441(a). (ECF No. 1.) This case now proceeds on the original complaint against defendants

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Jasmine A. Tehrani and Renee Wilkinson, Ph.D1 (“Defendants”) on Plaintiff’s Eighth

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Amendment claim that Defendants refused to correct inaccurate information on Plaintiff’s

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psychological report, which led to the repeated denial of parole; and on related state claims.

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(Id.)

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Sued as “Rene Wilkinson.” (ECF No. 41 at 1:23-34.)
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On September 23, 2016, Plaintiff filed a request for default judgment against defendant

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Tehrani. (ECF No. 35.) On September 29, 2016, defendant Tehrani filed an opposition. (ECF

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No. 36.) On October 13, 2016, Plaintiff filed a reply. (ECF No. 37.) Plaintiff’s request for

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default judgment is now before the court.

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II.

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DEFAULT JUDGMENT
A.

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Legal Standards
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Federal Rule of Civil Procedure 55

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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). If a defendant fails to plead or otherwise defend an action after being properly served

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with a summons and complaint, a default judgment may be entered pursuant to Rule 55(a) of

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the Federal Rules of Civil Procedure. Default is generally disfavored. In re Hammer, 940 F.2d

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524, 525 (9th Cir. 1991); Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir.

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2009).

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2.

Local Rule 110

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Local Rule 110 provides, “Failure of counsel or of a party to comply with these Rules

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or with any order of the Court may be grounds for imposition by the Court of any and all

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sanctions authorized by statute or Rule or within the inherent power of the Court.” L. R. 110.

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3.

Computing Time

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In computing a time period specified in the Federal Rules of Civil Procedure, when the

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period is stated in days and the last day of the period is a Saturday, Sunday, or legal holiday,

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the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal

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holiday. Fed. R. Civ. P. 6(a)(1)(c). Furthermore, pursuant to Rule 6(d), “When a party may or

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must act within a specified time after service and service is made under Rule 5(b)(2)(C) (mail),

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(D) (leaving with the clerk), or (F) (other means consented to), 3 days are added after the

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period would otherwise expire under Rule 6(a).” Fed. R. Civ. P. 6(d).

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Plaintiff’s Motion

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B.

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Plaintiff argues that under Rule 55 of the Federal Rules of Civil Procedure and Local

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Rule 110, he is entitled to default judgment against defendant Tehrani because defendant

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Tehrani filed her motion to dismiss too late, after the court’s thirty-day deadline had expired.

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Plaintiff asserts that on July 27 or 28, 2016, the court issued an order requiring defendant

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Tehrani to file a response to the complaint within thirty days of the date of service of the order.

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(ECF No. 28.) Defendant Tehrani filed a motion to dismiss on August 29, 2016. (ECF No.

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Plaintiff argues that because August 29, 2016 is more than thirty days after July 28, 2016,

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defendant Tehrani’s motion to dismiss was filed late. Plaintiff requests default judgment

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against defendant Tehrani.

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Defendant Tehrani argues that she is not in default for filing her motion to dismiss late.

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Defendant asserts that “[i]n its ‘Order Granting Joint Motion to Vacate Judgment and Reopening

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this Action,’ the Court stated: ‘Defendant Tehrani SHALL file a response to the complaint within

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thirty (30) days of the date of service of this order.’ (ECF No. 28 at 3 [second emphasis added].)

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Although that Order was dated July 27, 2016, it was served on Defendant Tehrani, via the Court’s

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Electronic Filing System (ECF), on July 28, 2016. Thirty days after July 28, 2016 was Saturday,

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August 27, 2016.” (ECF No. 36 at 2:6-11.) Defendant Tehrani argues that because her deadline

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to file a responsive pleading fell on a Saturday, under Rule 6(a) the deadline automatically extended

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to the following Monday—August 29, 2016, and therefore her motion to dismiss was timely filed

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and she is not in default.

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B.

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In this instance, 30 days from July 28, 2016, the date the court’s order was served, was

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August 27, 2016, which was a Saturday. (ECF No. 28.) Therefore, under Federal Rule of Civil

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Procedure 6(a)(1)(c), the 30 day-deadline for defendant Tehrani to file a response to the

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complaint was extended until Monday, August 29, 2016. Further, under Rule 6(a) defendant

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Tehrani was entitled to 3 additional days to file her response, until September 1, 2016. Fed. R.

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Civ. P. 6(d). Defendant Tehrani timely filed her motion to dismiss on August 29, 2016. (ECF

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No. 31.) Therefore, Plaintiff’s motion for default judgment shall be denied.

Discussion

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III.

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s request for default

judgment, filed on September 23, 2016, is DENIED.

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IT IS SO ORDERED.
Dated:

January 18, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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