Broussard v. Higgins

Filing 14

ORDER signed by Magistrate Judge Craig M. Kellison on 10/19/2012 DENYING plaintiff's 13 motion for default against the defendants. (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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LOUIS J. BROUSSARD,

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Plaintiff,
vs.

ORDER

K. HIGGINS,
Defendant.

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No. 2:12-CV-0984-CMK-P

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42
U.S.C. § 1983. Pending before the court is plaintiff’s motion for entry of default (Doc. 13).
Plaintiff is requesting the court to enter the default against the defendants

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pursuant to Federal Rule of Civil Procedure 55, alleging the defendants failed to answer or

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otherwise defend in this matter.

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A defendant is not in “default” unless he “has failed to plead or otherwise defend,

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and that failure is shown by affidavit or otherwise.” Fed. R. Civ. Proc. 55(a). A party generally

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has 20 after being served with the summons and complaint to file a responsive pleading. See

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Fed. R. Civ. Proc. 12(a). However, if the party has timely waived service under Rule 4(d), a

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responsive pleading is timely if filed within 60 days after the request for a waiver was sent. See
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id. A review of the docket in this case shows that the court ordered the United States Marshal to

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serve the complaint on defendants on July 19, 2012. No return of service has been filed with the

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court showing when or if any of the defendants have been served. As such, no default can be

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entered against the defendants for failure to defend.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for default
against the defendants (Doc. 13) is denied.

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DATED: October 19, 2012
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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