Holland v. Schuyler et al

Filing 12

ORDER DENYING 10 Plaintiff's Request for Entry of Default signed by Magistrate Judge Gary S. Austin on 7/28/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EVERETT HOLLAND,

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Plaintiff,

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1:16-cv-01271-DAD-GSA-PC
ORDER DENYING PLAINTIFF=S
REQUEST FOR ENTRY OF DEFAULT
(ECF No. 10.)

vs.
C. SCHUYLER, et al.,

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Defendants.

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I.

BACKGROUND

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This is a civil action filed by Everett Holland (“Plaintiff”), a state prisoner proceeding

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pro se. This action was initiated by civil complaint filed by Plaintiff in the Kern County

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Superior Court on September 29, 2015 (Case #BCV 15 101147 DRL). On August 26, 2016,

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defendants Esmond, Haak, Hunley, Maciejewski, and Schuyler removed the case to federal

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court by filing a Notice of Removal of Action pursuant to 28 U.S.C. § 1441(c). (ECF No. 1.)

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On December 27, 2016, Plaintiff filed a request for entry of default against defendants
Schuyler, Esmond, Haak, Hunley, Maciejewski, and Doe. (ECF No. 10.)
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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] 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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Plaintiff’s Request

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Plaintiff requests entry of default against defendants Schuyler, Esmond, Haak, Hunley,

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Maciejewski, and Doe, asserting that on July 27, 2016, he served copies of the summons and

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complaint on these defendants at the California Correctional Institution at Tehachapi,

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California and to date, none of these defendants have answered the complaint.

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Discussion

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The record in this action shows that on February 24, 2017, the court granted defendants

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Esmond, Haak, Hunley, Maciejewski, and Schuyler1 an extension of time until thirty days from

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the date of service of the court’s screening order in which to file a response to the complaint. (ECF

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No. 11.) To date, the court has not issued a screening order in this case, and therefore, Defendants’

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answer is not overdue. Accordingly, none of the defendants are in default under Rule 55(a), and

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Plaintiff’s request for entry of default must be denied.

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As for the Doe defendant, Plaintiff shows no evidence that he or she has been served with
process or joined in the removal of this case.
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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff=s request for entry of

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default against defendants Esmond, Haak, Hunley, Maciejewski, and Schuyler, and Doe, filed

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on December 27, 2016, is DENIED.

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IT IS SO ORDERED.
Dated:

July 28, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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