Stribling v. Mott et al

Filing 43

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AARON LAMONT STRIBLING,

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No. 2:16-cv-0400 CKD P

Plaintiff,

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v.

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R. MOTT, et al.,

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ORDER

Defendants.

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By order filed September 25, 2017, the undersigned denied plaintiff’s first request for a

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default judgment against defendant Salz because plaintiff had not first moved for entry of default.

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(ECF No. 36.) Defendant Salz was then given fourteen days to file and serve a response to the

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complaint and show cause why he should not be sanctioned for failing to timely respond to the

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complaint. (Id.) After fourteen days passed without a response from Salz, plaintiff moved for

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entry of default and default judgment against Salz. (ECF No. 37.) Three days after plaintiff’s

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motion was entered on the court’s docket, Salz filed an answer to the complaint. (ECF No. 39.)

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He subsequently filed a declaration explaining his delay in responding to the complaint. (ECF

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No. 41.)

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Because defendant Salz has now answered the complaint and demonstrated his intent to

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defend against plaintiff’s allegations and there does not appear to be any prejudice to plaintiff, the

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request for entry of default will be denied. Hoang Minh Tran v. Gore, No. 10cv2457
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BTM(WVG), 2012 WL 2501036, at *1, 2012 U.S. Dist. LEXIS 89941, at *3 (S.D. Cal. June 27,

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2012) (declining to enter default where defendant filed late answer and there was no prejudice to

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plaintiff); see also Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009) (“As

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a general rule, default judgments are disfavored; cases should be decided upon their merits

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whenever reasonably possible.”). Because the court declines to enter default against defendant

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Salz, the motion for entry of default judgment will also be denied.

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In his declaration, defendant Salz attests that he believed returning the waiver constituted

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an answer to the complaint. (ECF No. 41 at 2, ¶ 7.) He further avers that upon receiving the

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court’s September 25, 2017 order to show cause, he promptly arranged for counsel to represent

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him and counsel was assigned and filed a response to the complaint on October 20, 2017. (Id.,

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¶¶ 8-9.) Based upon the facts presented, the court finds that defendant Salz did not act to

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deliberately delay these proceedings and that the imposition of sanctions is not warranted under

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these circumstances.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for entry of default and default judgment (ECF No. 37) is denied.

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2. The September 25, 2017 order to show cause (ECF No. 36) is discharged.

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Dated: October 24, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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13:stri0400.default.update

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