Sharonoff v. California Department of Corrections et al

Filing 33

ORDER Denying Plainitff's 28 Motion for Default Judgment, signed by Magistrate Judge Gary S. Austin on 10/19/16. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KENNETH ALLEN SHARONOFF,

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Plaintiff,

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vs.

1:15-cv-00799-GSA-PC
ORDER DENYING PLAINTIFF’S MOTION
FOR DEFAULT JUDGMENT
(ECF No. 28.)

MONTOYA, et al.,

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Defendants.

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I.

BACKGROUND

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Kenneth Allen Sharonoff (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On May 27, 2015, Plaintiff

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filed the Complaint commencing this action. (ECF No. 1.) This case now proceeds with the

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Third Amended Complaint filed on January 20, 2016, against defendants M. Montoya and J.

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Torres-Azarte (“Defendants”), for failure to protect Plaintiff in violation of the Eighth

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Amendment. (ECF No. 14.) Defendants’ motion for summary judgment for failure to exhaust

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administrative remedies, filed on July 20, 2016, is pending. (ECF No. 23.)

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On August 25, 2016, Plaintiff filed a motion for default judgment against Defendants.

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(ECF No. 28.) On September 15, 2016, Defendants filed an opposition. (ECF No. 31.)

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Plaintiff’s motion for default judgment is now before the Court.
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II.

ENTRY OF DEFAULT AND DEFAULT JUDGMENT

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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] 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).

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

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

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Federal Rules of Civil Procedure. However, default is generally disfavored. In re Hammer,

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940 F.2d 524, 525 (9th Cir. 1991); Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189

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(9th Cir. 2009).

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Plaintiff’s Motion

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Plaintiff argues that he should be awarded $300,000.00 because in their motion for

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summary judgment, Defendants admitted responsibility for Plaintiff’s injuries.

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Defendants argue that Plaintiff’s request for default judgment should be denied because

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they filed a summary judgment motion on the grounds of exhaustion on July 20, 2016,

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indicating intent to defend the action.

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Discussion

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On March 18, 2016, the Court issued an order directing the United States Marshal

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(“Marshal”) to serve process in this action upon defendants Montoya and Torres-Azarte. (ECF

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No. 17.)

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Defendants, with Defendants’ Answer due on June 7, 2016. (ECF No. 18.) Defendants

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requested and were granted a forty-five-day extension of time to file an Answer. (ECF Nos.

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19, 20.) On July 20, 2016, Defendants filed a motion for summary judgment. (ECF No. 23.)

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Because Defendants appeared in this action by filing a motion for summary judgment in

On May 11, 2016, the Marshal filed two waiver of service forms signed by

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response to Plaintiff’s Third Amended Complaint, the Court cannot find that they failed to

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plead or otherwise defend this action. Plaintiff’s argument that Defendants have admitted

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responsibility for Plaintiff’s injuries is unpersuasive. The Court finds no evidence on the

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record that Defendants have conceded that Plaintiff’s claims against them are meritorious.

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Therefore, Plaintiff is not entitled to entry of default or default judgment against

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defendants Montoya or Torres-Arzate.

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III.

CONCLUSION

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

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Plaintiff’s motion for default judgment against defendants Montoya and Torres-Azarte, filed on

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August 25, 2016, is DENIED.

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IT IS SO ORDERED.
Dated:

October 19, 2016

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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