Stribling v. Mott et al
ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/24/17 ORDERING plaintiff's motion for entry of default 37 is denied. The 9/25/17 order to show cause 36 is discharged. (Plummer, M)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
AARON LAMONT STRIBLING,
No. 2:16-cv-0400 CKD P
R. MOTT, et al.,
By order filed September 25, 2017, the undersigned denied plaintiff’s first request for a
default judgment against defendant Salz because plaintiff had not first moved for entry of default.
(ECF No. 36.) Defendant Salz was then given fourteen days to file and serve a response to the
complaint and show cause why he should not be sanctioned for failing to timely respond to the
complaint. (Id.) After fourteen days passed without a response from Salz, plaintiff moved for
entry of default and default judgment against Salz. (ECF No. 37.) Three days after plaintiff’s
motion was entered on the court’s docket, Salz filed an answer to the complaint. (ECF No. 39.)
He subsequently filed a declaration explaining his delay in responding to the complaint. (ECF
Because defendant Salz has now answered the complaint and demonstrated his intent to
defend against plaintiff’s allegations and there does not appear to be any prejudice to plaintiff, the
request for entry of default will be denied. Hoang Minh Tran v. Gore, No. 10cv2457
BTM(WVG), 2012 WL 2501036, at *1, 2012 U.S. Dist. LEXIS 89941, at *3 (S.D. Cal. June 27,
2012) (declining to enter default where defendant filed late answer and there was no prejudice to
plaintiff); see also Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009) (“As
a general rule, default judgments are disfavored; cases should be decided upon their merits
whenever reasonably possible.”). Because the court declines to enter default against defendant
Salz, the motion for entry of default judgment will also be denied.
In his declaration, defendant Salz attests that he believed returning the waiver constituted
an answer to the complaint. (ECF No. 41 at 2, ¶ 7.) He further avers that upon receiving the
court’s September 25, 2017 order to show cause, he promptly arranged for counsel to represent
him and counsel was assigned and filed a response to the complaint on October 20, 2017. (Id.,
¶¶ 8-9.) Based upon the facts presented, the court finds that defendant Salz did not act to
deliberately delay these proceedings and that the imposition of sanctions is not warranted under
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s motion for entry of default and default judgment (ECF No. 37) is denied.
2. The September 25, 2017 order to show cause (ECF No. 36) is discharged.
Dated: October 24, 2017
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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