Cortinas v. Gill, Jr. et al

Filing 50

ORDER DENYING 24 & 26 Plaintiff's Motions for Clerk's Entry of Default signed by Magistrate Judge Helena M. Barch-Kuchta on 8/27/2021. (Jessen, A)

Case 1:18-cv-00515-NONE-HBK Document 50 Filed 08/27/21 Page 1 of 3
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY WILLIAMS CORTINAS,

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Plaintiff,

Case No. 1:18-cv-00515-NONE-HBK (PC)
ORDER DENYING PLAINTIFF’S MOTIONS
FOR CLERK’S ENTRY OF DEFAULT

v.
(Doc. Nos. 24, 26)
RAVIJOT GILL, JR., et al.,

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Defendants.

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Pending before the Court are, inter alia, Plaintiff’s requests for entry of default by the

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clerk against all Defendants filed on February 3 and 6, 2020, respectively. (Doc. Nos. 24, 26).

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The Court construes the motions to the Clerk of Court for entry of default under Federal Rule of

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Civil Procedure 55(a). Defendants opposed both motions. (Doc. Nos. 25, 27). Because the

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Court finds that the Clerk of Court properly withheld an entry of default, the Court denies

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Plaintiff’s motions.

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I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Larry Williams Cortinas, a state prisoner, initiated this action on April 10, 2018

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by filing a pro se civil rights complaint under 42 U.S.C. § 1983. (Doc. No. 1). Plaintiff is

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proceeding on his first amended complaint filed on June 29, 2019. (Doc. No. 17, FAC). On

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November 25, 2019, the former assigned magistrate judge screened Plaintiff’s FAC and found

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that it stated cognizable claims of medical deliberate indifference against Defendants Gill, Lenoir,

Case 1:18-cv-00515-NONE-HBK Document 50 Filed 08/27/21 Page 2 of 3
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McCabe, Rough, and Nguyen; a claim of retaliation against Rough; and an Equal Protection

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claim against McCabe, Rough, and Nguyen. (Doc. No. 18). Service was ordered on all

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Defendants under the Court’s E-Service pilot program. (Id.). The service order stated: “A

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defendant who timely waives service need not serve an answer to the complaint until sixty days

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after the waiver of service of process was sent.” (Id. at 3). Further, the order stated: “For any

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defendant who CDCR advises will be waiving service, the date CDCR files its Notice of E-

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Service Waiver will be considered the date the request for waiver was sent.” (Id.).

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On November 25, 2019, a summons was issued on all Defendants. (Doc. No. 19). On

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January 3, 2020, Defendants Gill, Lenoir, McCabe, and Rough submitted a notice of intent to

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waive E-Service and Defendant Nguyen submitted a notice of intent not to waive service. (Doc.

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Nos. 20, 21). On January 29, 2020, the waiver of service was returned executed as to Defendants

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Gill, Lenoir, McCabe, and Rough. (Doc. Nos. 22, 23). The docket reflects that an answer to the

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complaint by Defendants Gill, Lenoir, McCabe, and Rough was due March 3, 2020. (Doc. Nos.

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22, 23). On March 2, 2020, Defendants Gill, Lenoir, McCabe, and Rough moved to dismiss the

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complaint, thereby responding to the complaint in a timely manner. (Doc. No. 28). On April 17,

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2020, Defendant Nguyen joined in the Defendants’ motion to dismiss. (Doc. No. 32). On April

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21, 2020, the waiver of service was returned executed as to Defendant Nguyen. (Doc. No. 33).

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The docket reflects that Nguyen’s answer to the complaint was due on April 20, 2020. (Id.).

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Because Nguyen joined in the other Defendants’ motion to dismiss on April 17, 2020, his

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response to the complaint was timely. (Doc. No. 32).

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II. APPLICABLE LAW AND ANALYSIS

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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. R.

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Civ. P. 12(a)(1)(A). Under Rule 4(d), a defendant may waive service of a summons by signing
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Case 1:18-cv-00515-NONE-HBK Document 50 Filed 08/27/21 Page 3 of 3
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and returning a waiver of service. Fed. R. Civ. P. 4(d). If a defendant fails to plead or otherwise

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defend an action after being properly served with a summons and complaint, a default may be

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entered pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 55(a).

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Here, a clerk’s entry of default is not appropriate against any of the Defendants because

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no Defendant was delinquent in its duty to plead or otherwise defend. As noted above,

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Defendants Gill, Lenoir, McCabe, and Rough had until March 3, 2020 to file a response to the

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complaint and these Defendants timely filed a motion to dismiss on March 2, 2020. As to

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Defendant Nguyen, he had not yet been served at the time Plaintiff filed his motions for entry of

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default. (See Doc. No. 33). Moreover, Nguyen’s response to the complaint was not due until

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April 20, 2020 and he timely joined in the other Defendants’ motion to dismiss on April 17, 2020.

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(Doc. No. 32). The Court finds that the Clerk of Court properly withheld entry of default against

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the Defendants under Federal Rule of Civil Procedure 55(a).

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Accordingly, it is hereby ORDERED:

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The Clerk of Court properly withheld entry of default and Plaintiff’s motions are

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DENIED. (Doc. Nos. 24, 26).

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Dated:

August 27, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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