Robinson v. Secretary of State Debra Bowen et al
Memorandum in Opposition to Plaintiff's Request for Entry of Default filed by Secretary of State Debra Bowen. (Attachments: # 1 Exhibit A, # 2 Certificate of Service)(Barankin, Nathan) (Filed on 9/11/2008) Modified on 9/12/2008 (sis, COURT STAFF).
Robinson v. Secretary of State Debra Bowen et al
1 E D M U N D G. B R O W N JR. Attorney General o f the State o f California 2 C H R I S T O P H E R E. K R U E G E R S e n i o r A s s i s t a n t A t t o r n e y General 3 J O N A T H A N K. R E N N E R S u p e r v i s i n g Deputy A t t o r n e y General 4 N A T H A N R. B A R A N K I N, State B a r N o . 246313 D e p u t y A t t o r n e y General 5 1300 I Street, Suite 125 P.O. Box 944255 6 Sacramento, CA 94244-2550 Telephone: (916) 323-8050 7 Fax: (916) 324-8835 E-mail: N a t h a n . B a r a n k i n @ d o j . c a . g o v 8 Attorneys for Office o f Secretary o f State
U N I T E D STATES DISTRICT C O U R T
N O R T H E R N D I S T R I C T OF CALIFORNIA 11 12 13 14
M A R K H A M R O B I N S O N , in his c a p a c i t y as t h e P r e s i d e n t i a l E l e c t o r a n d C h a i r p e r s o n - E l e c t of t h e American Independent Party
P l a i n t i f f,
C a s e N o . : 3:08-(::V-03836 W H A
16 17 18 19 20 21
v. S E C R E T A R Y O F S T A T E D E B R A B O W E N , in h e r i n d i v i d u a l a n d official c a p a c i t i e s , T H E REPUBLICAN NATIONAL COMMITTEE, and organization, form unknown, THE REPUBLICAN P A R T Y O F C A L I F O R N I A , an o r g a n i z a t i o n , f o r m u n k n o w n , S E N A T O R J O H N M c C A I N , in his i n i d i v i d u a l a n d official c a p a c i t i e s , D O E S O N E t h r o u g h F I F T Y F I V E , inclusive,
DEFENDANT SECRETARY OF STATE DEBRA BOWEN'S OPPOSITION TO PLAINTIFF'S REQUEST FOR ENTRY OF DISMISSAL
Date: Time: Dept: Judge: Trial Date: A c t i o n Filed:
The Honorable William Alsup
22 23 24 25 26
D E F E N D A N T SECRETARY OF STATE DEBRA BOWEN 'S OPPOSITION TO PLAINTIFF'S REQUEST FOR ENTRY OF DISMISSAL
On September 9, 2008, Plaintiff filed a request seeking entry o f default against
2 Secretary o f State Debra Bowen ("Secretary") based on the allegation that the Secretary did not 3 timely file a proper responsive pleading to P l a i n t i f f s complaint. Pl. ' s Req . For Entry o f Default , 4 Doc. No . 35 . P l a i n t i f f s request should be denied for two reasons. First, the Secretary did timely 5 file a proper response pursuant to the Court's scheduling order. Scheduling Order, Doc. 21; 6 Bowen O p p ' n, Doc. 31. Second, the Secretary ' s efforts to defend against Plaintiff's action 7 establish that an entry of default is improper. 8 Pursuant to the Court's scheduling order, the only document the Secretary was
9 authorized to file was an "opposition" to plaintiff's motion for a preliminary injunction by
10 September 4, 2008. li Doc. 21. I t was entirely within the prerogative o f the Court to issue a
scheduling order establishing the type and timing o f briefs to be filed in this action. Fed. R. Civ.
12 P. 16. By timely filing her opposition, the Secretary filed a proper response to P l a i n t i f f s 13 preliminary injunction motion. Further, though styled as an "opposition," the Secretary 14 specifically requested that, pursuant to Federal Rule o f Civil Procedure 12(b)(6), the Court 15 dismiss Plaintiff's action for failure to state a claim. BowenOpp'n, Doc. 31, p. 4:2-7. Thus, 16 even i f one chose to ignore the Court ' s scheduling order, Plaintiff's request for default should be 17 rejected because the Secretary filed a proper motion in response to Plaintiff's motion for a 18 preliminary injunction. 19 Plaintiff's request also should be rejected because default may only be entered against a
20 party that has failed to plead or otherwise defend in an action. Fed. R. Civ . Proc. 55. Under this 21 standard, the key issue is whether the Secretary has asserted a defense. to the action, even i f a 22 responsive pleading has not yet been served. 10 M o o r e ' s Federal Practice, § 55.11[2J[b] 23 (Matthew Bender 3d ed.). Here, the Secretary's opposition and request that the Court dismiss 24 1. The Court ' s scheduling order also authorized the filing o f "defendants' motion to 26 dismiss" by August 28 , 2 0 0 8 . Order, Doc. 21. This portion o f the order applied to the Republican National Committee, Senator John McCain , and the California Republican Party , who, at the August 27 21, 2008 hearing, urged the Court to forego any briefing on Plaintiff's preliminary injunction motion pending resolution o f their anticipated motion to dismiss. The Secretary neither sought nor obtained 28 permission from the Court to file a separate motion to dismiss. 1
DEFENDANT SECRETARY OF STATE DEBRA B O W E N ' S OPPOSITION TO P L A I N T I F F ' S REQUEST FOR ENTRY OF DISMISSAL
1 P l a i n t i f f ' s action constitutes a defense . Accordingly, P l a i n t i f f ' s request for default should be 2 denied .
Notwithstanding the above , i f the Court concludes that P l a i n t i f f s request deserves any
4 credence whatsoever, the Secretary is prepared to re-style its opposition and file a Motion to 5 Dismiss P l a i n t i f f ' s C o m p l a i n t for Declaratory and Injunctive Relief. Mitchell v. Brown &
6 Williamson Tobacco Corp., 294 F.3d 1309, 1317 [late filed responsive pleadings prevent an entry
7 o f default]. A copy o f this motion is attached as Exhibit A for the convenience o f the Court. 8 9 10 Dated: September 11, 2008 Respectfully submitted, E D M U N D G. B R O W N JR. Attorney General o f the State o f California C H R I S T O P H E R E. K R U E G E R Senior Assistant Attorney General J O N A T H A N K. R E N N E R Supervising Deputy Attorney General /s/ N a t h a n R. Barankin N A T H A N R . BARANKIN Deputy Attorney General Attorneys for the Office o f the Secretary o f State
12 13 14 15 16 17 18 19 SA2008304514 20 21 22 23 24 25 26 27 28 2
D E F E N D A N T SECRETARY OF STATE DEBRA BOWEN 'S OPPOSITION TO P L A I N T I F F ' S REQUEST FOR ENTRY OF DISMISSAL
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?