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)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
FRANCOIS P. GIVENS,
12
13
14
15
No. 2:15-cv-720-JAM-KJN PS
Plaintiff,
v.
ORDER
COUNTY OF SACRAMENTO, et al.,
Defendants.
16
17
Presently pending before the court is plaintiff’s “ex parte request for default judgment.”
18
(ECF No. 37.) Defendants have opposed the request, and plaintiff filed a reply. (ECF No. 39,
19
40.) For the reasons discussed below, the request is DENIED.
20
The court’s record shows that the U.S. Marshal mailed a copy of plaintiff’s first amended
21
complaint, along with requests for waiver of service of summons, to defendants on December 5,
22
2016. On January 3, 2017, defendants timely executed and returned their waivers of service of
23
summons to the U.S. Marshal. Thereafter, on February 3, 2017, defendants timely filed and
24
served their answer to plaintiff’s first amended complaint. See Fed. R. Civ. P. 4(d)(1)(F)
25
(defendant to be provided with a reasonable time of at least 30 days after request was sent to
26
return the waiver); Fed. R. Civ. P. 4(d)(3) (“A defendant who, before being served with process,
27
timely returns a waiver need not serve an answer to the complaint until 60 days after the request
28
was sent….”). As such, entry of default is not warranted.
1
1
In his reply brief, plaintiff suggests that the defendants improperly returned the waiver of
2
service of summons to the U.S. Marshal and not to plaintiff. Plaintiff is mistaken. Because
3
plaintiff is proceeding in forma pauperis, the U.S. Marshal was directed to effectuate service of
4
process, and the court’s November 7, 2016 order as well as the U.S. Marshal’s requests for
5
waiver of service of summons specifically directed defendants to return the waivers to the U.S.
6
Marshal. (See ECF Nos. 25, 39 at 6-8.) Therefore, the waivers were properly returned to the
7
U.S. Marshal.
8
9
10
11
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
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?