Robinson v. Secretary of State Debra Bowen et al

Filing 37

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

Doc. 37

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: [phone] Fax: [phone] 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

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U N I T E D STATES DISTRICT C O U R T

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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

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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,
Defendants.

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:

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The Honorable William Alsup

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D E F E N D A N T SECRETARY OF STATE DEBRA BOWEN 'S OPPOSITION TO PLAINTIFF'S REQUEST FOR ENTRY OF DISMISSAL

Dockets.Justia.com

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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

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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

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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 .

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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
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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