Draper v. Rosairo et al

Filing 43

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/26/2011 DENYING pltf's 35 motion for default judgment. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN CLINT DRAPER,
Plaintiff,

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vs.
D. ROSARIO, et al.,
Defendants.

ORDER
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No. CIV S-10-0032 KJM EFB P

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Plaintiff has filed a motion for default judgment, claiming that defendants failed

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to timely answer his complaint.

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Federal Rule of Civil Procedure 55 states:

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When a party against whom a judgment for affirmative relief is sought has failed
to plead or otherwise defend as provided by these rules and that fact is made to
appear by affidavit or otherwise, the clerk shall enter the party’s default.

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A party who waives service of process has 60 days from the date the request for waiver was sent

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to serve an answer. Fed. R. Civ. P. 4(d)(3). The United States Marshal sent a request for waiver

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on April 22, 2011. On June 23, 2011, on defendants’ request, the court granted an extension of

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time, making defendants’ response due July 21, 2011. Defendants timely filed their motion to

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dismiss on July 21, 2011.
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Accordingly, plaintiff’s motion for default judgment is hereby denied.

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So ordered.

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DATED: October 26, 2011.

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