Givens v. County of Sacramento, et al.

Filing 41

ORDER signed by Magistrate Judge Kendall J. Newman on 2/21/17 ORDERING plaintiff's "ex parte request for default judgment" (ECF No. 37 ) is DENIED, and the answer is properly filed. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANCOIS P. GIVENS,

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No. 2:15-cv-720-JAM-KJN PS

Plaintiff,
v.

ORDER

COUNTY OF SACRAMENTO, et al.,
Defendants.

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Presently pending before the court is plaintiff’s “ex parte request for default judgment.”

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(ECF No. 37.) Defendants have opposed the request, and plaintiff filed a reply. (ECF No. 39,

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40.) For the reasons discussed below, the request is DENIED.

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The court’s record shows that the U.S. Marshal mailed a copy of plaintiff’s first amended

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complaint, along with requests for waiver of service of summons, to defendants on December 5,

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2016. On January 3, 2017, defendants timely executed and returned their waivers of service of

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summons to the U.S. Marshal. Thereafter, on February 3, 2017, defendants timely filed and

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served their answer to plaintiff’s first amended complaint. See Fed. R. Civ. P. 4(d)(1)(F)

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(defendant to be provided with a reasonable time of at least 30 days after request was sent to

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return the waiver); Fed. R. Civ. P. 4(d)(3) (“A defendant who, before being served with process,

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timely returns a waiver need not serve an answer to the complaint until 60 days after the request

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was sent….”). As such, entry of default is not warranted.
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In his reply brief, plaintiff suggests that the defendants improperly returned the waiver of

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service of summons to the U.S. Marshal and not to plaintiff. Plaintiff is mistaken. Because

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plaintiff is proceeding in forma pauperis, the U.S. Marshal was directed to effectuate service of

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process, and the court’s November 7, 2016 order as well as the U.S. Marshal’s requests for

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waiver of service of summons specifically directed defendants to return the waivers to the U.S.

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Marshal. (See ECF Nos. 25, 39 at 6-8.) Therefore, the waivers were properly returned to the

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U.S. Marshal.

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Accordingly, plaintiff’s “ex parte request for default judgment” (ECF No. 37) is DENIED,
and the answer is properly filed.
IT IS SO ORDERED.
Dated: February 21, 2017

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