McDowell et al v. City and County of San Francisco et al

Filing 45

ORDER DENYING SECOND REQUEST FOR DEFAULT JUDGMENT DUE TO DEFENDANT'S FAILURE TO ANSWER FIRST AMENDED COMPLAINT. Signed by Judge Jeffrey S. White on 2/8/13. (jjoS, COURT STAFF) (Filed on 2/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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FRANK AND DEBORAH MCDOWELL,

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For the Northern District of California

United States District Court

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No. C 12-03192 JSW

Plaintiffs,
v.
CITY AND COUNTY OF SAN FRANCISCO,

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ORDER DENYING SECOND
REQUEST FOR DEFAULT
JUDGMENT DUE TO
DEFENDANT’S FAILURE TO
ANSWER FIRST AMENDED
COMPLAINT

Defendants.
(Docket No. 42)

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On January 10, 2013, Plaintiffs filed a motion for default judgment on the basis that

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Defendants had requested an extension of time to file a response to the amended complaint for a

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reason Plaintiffs found unacceptable. The Court denied that motion, because Defendants filed a

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motion to dismiss on January 7, 2013, and the Court stated that the motion was timely filed.

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On January 28, 2013, Plaintiffs filed a second motion for default judgment. Plaintiffs

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argue that Defendant’s response to their First Amended Complaint was not timely. Plaintiffs

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filed their First Amended Complaint on December 21, 2012. Plaintiffs state that they were

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under “the impression that Defendants had fourteen days to respond to written motions.”

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(Docket No. 47 at 1:16-17.) Although the Plaintiffs’ First Amended Complaint is not a motion,

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pursuant to Federal Rule of Civil Procedure 15(a)(3), “[u]nless the Court orders otherwise, any

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required response to an amended pleading must be made within the time remaining to respond

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to the original pleading or within 14 days after service of the amended pleading, whichever is

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later.”

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According to the Proof of Service attached to the First Amended Complaint, Plaintiffs

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served the First Amended Complaint by mail. Thus, Defendants’ motion to dismiss was timely

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filed, because Defendants had an additional three days to respond. See Fed. R. Civ. P. 6(d).

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Accordingly, the Court DENIES Plaintiffs’ second motion for default judgment.

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IT IS SO ORDERED.

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Dated: February 8, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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FRANK AND DEBORAH MCDOWELL
6 et al,

Case Number: CV12-03192 JSW

Plaintiff,

CERTIFICATE OF SERVICE

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v.

9 CITY AND COUNTY OF SAN
FRANCISCO et al,
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Defendant.
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For the Northern District of California

United States District Court

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
13 District Court, Northern District of California.
14 That on February 8, 2013, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
15 listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.
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18 Deborah McDowell
Frank McDowell
19 2800 Bellwort Court
Antioch, CA 94531
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Dated: February 8, 2013
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk