Rood v. Swarthout, et al.

Filing 24

ORDER denying 20 Motion for entry of default signed by Magistrate Judge Craig M. Kellison on 9/30/16. (Plummer, 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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RICHARD V. ROOD,

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Plaintiff,

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vs.

ORDER

GARY SWARTHOUT, et al.,

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Defendant.

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/

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No. 2:13-cv-0478-CMK-P

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. 20).

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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 service has not yet been authorized. Until the

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defendants have been served, no default can be entered against them.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for default
against the defendants (Doc. 20) is denied.

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DATED: September 30, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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