Mackenzie v. Cornez

Filing 22

ORDER signed by Magistrate Judge Kendall J. Newman on 9/16/2016 GRANTING plaintiff's 12 request for leave to amend, and this action shall proceed on the First Amended Compliant (ECF No. 12 - 1). Within 30 days, plaintiff shall file an opposition or statement of non-opposition to defendant's motion to dismiss. Plaintiff's 14 request for "sanctions and ruling", construed as a request for sanctions and default judgment, is DENIED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DOUGLAS MACKENZIE,

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Plaintiff,

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v.

No. 2:15-cv-0380 KJM KJN P

ORDER

DEBRA M. CORNEZ,

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Defendant.

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Plaintiff is a civil detainee, proceeding pro se, in this civil rights action brought pursuant

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to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28

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U.S.C. § 636(b)(1). This order addresses plaintiff’s request for leave to amend the complaint and

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plaintiff’s request for “sanctions and ruling.” (ECF Nos. 12 & 14.)

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Plaintiff’s Request for Leave to Amend

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Plaintiff filed his original complaint in this action on February 17, 2015. (ECF No. 1.)

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On August 21, 2015, the court found that service was appropriate for defendant Cornez. (ECF

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No. 8.) Plaintiff submitted the required service documents, and on September 8, 2015, the court

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directed the United States Marshal to serve process on defendant Cornez. (ECF No. 10.) On

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September 11, 2015, plaintiff filed a request for leave to file an amended complaint, along with a

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proposed amended complaint. (ECF Nos. 12 & 12-1.)

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Under Rule 15(a), a party may amend his pleading once as a matter of course at any time

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before a responsive pleading is served. Fed. R. Civ. P. 15(a); Allwaste, Inc. v. Hecht, 65 F.3d

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1523, 1530 (9th Cir. 1995). When plaintiff filed his first and only request for leave to amend the

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complaint, defendant Cornez had not yet been served with the complaint.1 Accordingly,

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plaintiff’s timely request for leave to amend will be granted nunc pro tunc, and this action shall

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proceed on the First Amended Complaint (FAC), ECF No. 12-1. Because defendant Cornez has

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already filed a motion to dismiss the FAC, see ECF No. 19, there is no need for plaintiff to serve

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the FAC on defendant.2
Plaintiff’s Request for Sanctions and Default Judgment

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Plaintiff also filed a “request for sanctions and ruling.” (ECF No. 14.) In his motion, filed

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January 14, 2016, plaintiff requests that the court impose sanctions on defendant Cornez for

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failure to respond to the complaint within thirty days of the “court’s order.”3 (Id. at 1.) Plaintiff

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asserts that because defendant did not respond to the complaint, the court should deem the matter

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submitted, address the merits of his complaint, and grant the requested injunctive relief. (See id.)

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In light of plaintiff’s request, the court construes plaintiff’s motion as a request for an entry of

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default and default judgment against defendant Cornez.

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Entry of default is appropriate as to any party against whom a judgment for affirmative

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relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of

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Civil Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P.

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55(a). Rule 12 of the Federal Rules of Civil Procedure provides, “A defendant must serve an

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answer within 21 days after being served with the summons and complaint; or if it has timely

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waived service under Rule 4(d), within 60 days after the request for a waiver was sent.” Fed. R.

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The court’s review of the docket indicates that defendant Cornez was personally served with the
summons and complaint on April 28, 2016. (See ECF No. 15.)

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In her motion to dismiss, defendant Cornez explains that although she was served with the
original complaint, “[f]or the sake of judicial economy, the [motion to dismiss] responds to the
FAC even though it was not served on the Defendant.” ECF No. 19-1 at 7.
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Presumably plaintiff is referring to the court’s September 8, 2015 order directing the United
States Marshal to serve process within 14 days on defendant Cornez, ECF No. 10.
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Civ. P. 12(a) (1)(A). Under Rule 4(d), a defendant may waive service of a summons by signing

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and returning a waiver of service. Fed. R. Civ. P. 4(d). If a defendant fails to plead or otherwise

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defend an action after being properly served with a summons and complaint, a default judgment

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may be entered pursuant to Rule 55(a) of the Federal Rules of Civil Procedure.

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In the instant case, the record reflects that defendant Cornez opted not to waive service

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under Rule 4(d). Thus, defendant was personally served by the United States Marshal on April

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28, 2016. (See ECF No. 15.) On May 19, 2016, defendant filed a timely motion to dismiss the

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First Amended Complaint under Rule 12(b). (ECF No. 19.) Because defendant’s motion to

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dismiss was timely filed before an answer was due, see Rule 12(a)(1), the court finds no evidence

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that defendant Cornez failed to plead or otherwise defend this action. Therefore, plaintiff is not

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entitled to an entry of default or default judgment against defendant Cornez. For the same

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reasons, sanctions based on defendant’s alleged failure to respond to the complaint are

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unwarranted. Plaintiff’s motion for “sanctions and ruling” will therefore be denied.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to amend (ECF No. 12) is granted nunc pro tunc. This

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action shall proceed on the First Amended Complaint (ECF No. 12-1), filed

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September 11, 2015.

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2. Within thirty days of the date of service of this order, plaintiff shall file an opposition

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or statement of non-opposition to defendant’s motion to dismiss the FAC (ECF No.

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19). Failure to comply with the court’s order will result in a recommendation that this

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action be dismissed. See Fed. R. Civ. P. 41(b).

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3. Plaintiff’s request for “sanctions and ruling” (ECF No. 14), construed as a request for
sanctions and default judgment, is denied.
Dated: September 16, 2016

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