Smith v. Sahota et al

Filing 60

ORDER signed by Magistrate Judge Carolyn K. Delaney on 5/23/12 ORDERING that 59 Motion for Default Judgment is DENIED; Clerk of Court shall amend the docket to change defendant Debra Sweeney to Debra Roberts-Sweeny and to note that defendant Nangalama was dismissed from this action on March 31, 2012.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY SMITH,

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Plaintiff,

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No. CIV S-10-0762 KJM CKD P

vs.
BEHROZ HAMKAR1, et al.,

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Defendant.

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ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s May 16, 2012 motion for default

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judgment against defendants Ma, Hamkar, Teachout, and Roberts-Sweeny (erroneously

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identified in the complaint as Sweeney). (See Dkt. No. 57 at 1, n.1.)

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Plaintiff contends that, under Federal Rule of Civil Procedure Rule 12(a)(4),

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defendants missed their deadline to file a responsive pleading following the district court’s

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March 31, 2012 order, which denied defendants’ motion to dismiss as to certain claims against

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Hamkar, Teachout, and Ma. (Dkt. No. 55.)

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Defendant Nangalama has been dismissed from this action. (Dkt. No. 55.)
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This argument is meritless. Rule 12(a)(4) provides a deadline to file a responsive

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pleading “[u]nless the court sets a different time[.]” On April 13, 2012, the court ordered

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defendants to file an answer to the remaining claims within 14 days of the filed date of that order.

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(Dkt. No. 56.) Defendants filed their answer on April 25, 2012. (Dkt. No. 57.) Thus the answer

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is timely and no default judgment is warranted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s May 16, 2012 motion for default judgment (Dkt. No. 59) is denied;

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and

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2. The Clerk of Court shall amend the docket to change defendant “Debra

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Sweeney” to “Debra Roberts-Sweeny” and to note that defendant Nangalama was dismissed

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from this action on March 31, 2012.

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Dated: May 23, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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smit0762.ord

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