Meador v. Wedell et al

Filing 37

ORDER signed by Magistrate Judge Dale A. Drozd on 4/5/11 ORDERING that plaintiffs 26 motion for default judgment is DENIED; and Plaintiffs 30 motion for default judgment is DENIED. (Dillon, M)

-DAD (PC) Meador v. Wedell et al

Doc. 37

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. WEDELL, et al., Defendants. / Plaintiff is a state prisoner proceeding pro se with a civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff has filed two motions seeking entry of default judgment against the defendants and requesting wage garnishments and liens on the defendants' personal and real property. Court records indicate that on October 29, 2010, the court filed an order directing the United States Marshal to serve process on defendants Bobbola and Wedell. On March 15, 2011, defendants filed their answer in this action. Plaintiff argues that defendants failed to file a response to the complaint within sixty days. (Doc. No. 26 at 2.) However, court records do not indicate the day on which defendants were served nor whether defendants waived service pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. Moreover, the court has discretion to grant or deny an application for default judgment, and may consider a number of factors including: (1) the 1
Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA GORDON DALE MEADOR, Plaintiff, No. CIV S-10-0901 FCD DAD P

ORDER

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possibility of prejudice to the plaintiff; (2) the merits of the plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.1986). These factors have not been adequately addressed by plaintiff in his motions. Most importantly, the court is mindful of the final factor noted above. Considering that factor, even when a technical default has occurred, there remains a strong policy to allow the action to be tried on the merits. Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's January 10, 2011 motion for default judgment (Doc. No. 26) is denied; and 2. Plaintiff's February 10, 2011 motion for default judgment (Doc. No. 30) is denied. DATED: April 5, 2011.

DAD:4 mead0901.default

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