Cecil vs. Beard

Filing 74

ORDER signed by Magistrate Judge Kendall J. Newman on 8/21/2014 DENYING without prejudice, plaintiff's 69 motion for default. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY CECIL,

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No. 2:13-cv-1923 TLN KJN P
Plaintiff,

v.

ORDER

JEFF BEARD, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel. On August 15, 2014, plaintiff
filed a motion for default judgment. Plaintiff claims that defendants failed to file an answer.
On August 13, 2014, plaintiff filed a letter to the court objecting to the denial of his

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request for entry of default, and noting the mail log at his prison did not reflect his receipt of

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defendants’ answer.

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On August 18, 2014, plaintiff filed a request to reverse the denial of plaintiff’s declaration

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for entry of default, and claims that on August 14, 2014, he received a letter from respondent’s

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counsel, postmarked August 12, 2014, containing an answer to the complaint, along with what

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plaintiff calls a “faulty” proof of service stating that plaintiff was served in July. Plaintiff states

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that he plans to file a petition for writ of mandate in the Ninth Circuit Court of Appeals to compel

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this court “to reverse their denial of plaintiff’s declaration and docket defendants’ default since it

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was at no fault of plaintiff. Defendants lied about service.” (ECF No. 71 at 1.)
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On July 3, 2014, defendants Norgaard, Smith, Rohlfing, Schmidt, Artis, Lozano and

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Foulk filed an answer. Appended to the answer is a declaration of service by mail stating that a

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copy of the answer was served on plaintiff at his address of record on July 3, 2014. (ECF No. 60

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at 5.) On August 11, 2014, plaintiff’s request for entry of default was declined because

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defendants filed an answer on July 3, 2014. (ECF No. 67.)

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It appears that plaintiff did not receive a copy of the answer filed on July 3, 2014.

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However, it also appears that counsel for defendants re-served a copy of the answer on plaintiff

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once counsel became aware that plaintiff did not receive a copy of the answer. Moreover,

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plaintiff has not been prejudiced by the delay in the receipt of the answer. The court has not

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ordered plaintiff to file a reply, and in the absence of such an order, no reply to the answer is

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permitted. Fed. R. Civ. P. 7(a). The court issued its discovery and scheduling order on July 18,

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2014, so this case has not been delayed.

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Finally, there is no right to a default judgment; its entry is entirely within the discretion of

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the district court. See Draper v. Coombs, 792 F.2d 915, 925 (9th Cir. 1986); see also Rashidi v.

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Albright, 818 F.Supp. 1354, 1356, n.4 (D. Nev. 1993) (“Because the court has discretion, a party

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making a request may not be entitled to default judgment as a matter of right even when the

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defendant is technically in default and that fact has been noticed under Rule 55(a).”). Defaults

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are generally disfavored. Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). The Federal

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Rules of Civil Procedure favor decisions on the merits. Eitel, 782 F.2d at 1472.

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Here, defendants timely filed an answer; thus, the Clerk of the Court could not enter

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default or default judgment under Rule 55(a) and (b)(1) of the Federal Rules of Civil Procedure.

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Similarly, entry of default judgment by the court is also inappropriate under Rule 55(b)(2). Fed.

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R. Civ. P. 55(b)(2).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for default (ECF No. 69)

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is denied without prejudice.

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Dated: August 21, 2014

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/ceci1923.def

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