Pope v. Garcia et al

Filing 26

ORDER signed by Magistrate Judge Gregory G. Hollows on 09/22/11 denying 21 request for Entry of Default. As no entry of default has been made there can be no judgment of default. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

JACOBY POPE,

11

Plaintiff,

12

vs.

13

No. CIV S-11-0101 LKK GGH P

R. GARCIA, et al.,

14
15
16

Defendant.

ORDER
/

On September 7, 2011, an executed summons was filed on behalf of defendant

17

Garcia. The summons indicated that no waiver of personal service had been returned by

18

defendant Garcia and that personal service was carried out on August 31, 2011. On September

19

13, 2011, plaintiff filed a request for entry of default as to defendant Garcia and a judgment

20

against him in the amount of $150,000.00. Plaintiff’s request is predicated on plaintiff’s

21

contention that defendant Garcia failed to file or serve an answer or other response more than 35

22

days after service of the summons and complaint.

23

Pursuant to Fed. R. Civ. P. 12(a)(1)(A), a defendant, like defendant Garcia, who

24

has not timely waived service “must serve an answer: (i) within 21 days after being served with

25

the summons or complaint....” Defendant Garcia filed and served an answer on September 15,

26

2011, 15 days after the docket indicates personal service had to be effected upon him (on August
1

1

31, 2011), i.e., within the limit set forth by Rule 12(a)(1)(A)(i).

2

Accordingly, IT IS ORDERED that plaintiff’s request for entry of a default

3

against defendant Garcia, filed on September 13, 2011 (docket # 21), is denied. As no entry of

4

default has been made. There can be no judgment of default.

5

DATED: September 22, 2011

6
7

/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:009
pope0101.ord

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
2