Mulgrew v. Green Tree Servicing LLC et al

Filing 24

ORDER denying plaintiff's 23 Motion for Default Judgment, signed by Magistrate Judge Craig M. Kellison on 7/20/16. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY MULGREW, JR.,

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No. 2:14cv2998-MCE-CMK

Plaintiff,
vs.

ORDER

GREEN TREE SERVICING LLC,
et al.,

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Defendants.
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Plaintiff, proceeding in propria persona, brings this civil action under 28 U.S.C.

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§ 1332. Pending before the court is plaintiff motion for default judgment (Doc. 23). Plaintiff is

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requesting the court enter default judgment against the defendants for failure to timely respond to

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the complaint pursuant to Federal Rule of Civil Procedure 55.

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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 days after being served with the summons and complaint to file a responsive pleading.

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See 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. The time for filing a responsive pleading may also be extended by stipulation or court order.
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Once a responsive pleading is filed with the court, even if untimely, no default may be entered.

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Therefore, if an untimely responsive pleading is filed with the court prior to any request for entry

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of default, the defendant is no longer in default.

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Here, plaintiff’s motion was signed on July 14, 2016, and filed with the court on

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July 15, 2016. The court notes no proof of service is filed with the motion. However, the court

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received defendants’ motion to dismiss on June 27, 2016. Thus, the defendants responded to the

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complaint prior to the request for default and no default may be entered at this time.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for default (Doc.
23) is denied.

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DATED: July 20, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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