Johnson v. Wennes et al

Filing 35

ORDER Denying 33 Motion for Entry of Default Judgment: Plaintiffs motion for default judgment is DENIED. To the extent plaintiffs motion for default judgment is intended to be a request for entry of default, the request is DENIED. Signed by Judge M. James Lorenz on 1/13/2009. (All non-registered users served via U.S. Mail Service).(mjj)

1 2 3 4 5 6 7 8 9 10 11 WARREN BRAD JOHNSON, 12 13 v. 14 TIMOTHY WENNES, et al., 15 16 17 Defendants. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv1798-L(JMA) ORDER DENYING MOTION FOR ENTRY OF DEFAULT JUDGMENT [doc. #33] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

After plaintiff Warren Brad Johnson's original complaint was dismissed without

18 prejudice for failure to state a claim and for violation of Federal Rule of Civil Procedure 8, he 19 filed a first amended complaint ("FAC") on December 17, 2008. The certificate of service 20 indicates that he mailed the FAC to defendants' counsel of record on December 17, 2008. See 21 Docket No. 28. On January 5, 2009, defendants filed a motion to dismiss the FAC or 22 alternatively, for a more definite statement. See Docket No. 29. 23 Plaintiff now moves for entry of default judgment under Federal Rule of Civil Procedure

24 55 contending that defendants' motion to dismiss is untimely. 25 The Court first notes that plaintiff's motion for default judgment is premature because

26 default has not been entered as required under Federal Rule of Civil Procedure 55(a): 27 28 When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.
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1 A motion for default judgment may not be considered prior to entry of default. For this reason, 2 plaintiff's motion for default judgment will be denied. 3 Even if the Court construes plaintiff's motion for default judgment as a request for entry

4 of default, it would be denied because defendants have a timely motion to dismiss pending. 5 If a motion to dismiss is granted but with leave to amend, the time to respond by way of a

6 motion to dismiss or answer to the amended complaint is 10 days from service of the amended 7 pleading unless otherwise specified by the court or by stipulation. FED. R. CIV. P. 15(a)(3).1 8 Federal Rule of Civil Procedure 6(a) provides the rules to apply in computing any time period 9 specified in the federal or local rules, court orders, or statutes. Because the time to respond to an 10 amended complaint is 10 days, the Court "[e]xclude[s] intermediate Saturdays, Sundays, and 11 legal holidays" in determining the due date. FED. R. CIV. P. 6(a)(2). The day the amended 12 complaint is mailed to defendants or their counsel is excluded from the computation. See FED. 13 R. CIV. P. 6(a)(1). "When a party may or must act within a specified time after service and 14 service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would 15 otherwise expire under Rule 6(a)." FED. R. CIV. P. 6(d). As noted above, plaintiff served the 16 FAC by mail; therefore, service was made under Rule 5(b)(2)(C) and an additional three days is 17 added to the 10-day response period. 18 Under the facts of this case, plaintiff mailed the FAC to defendants' counsel on December

19 17, 2008; therefore, the counting of the 10 days for a response to the FAC commences on 20 December 18, 2008. The following days are excluded from the count because they are either 21 Saturdays, Sundays or legal holidays2: December 20, 21, 25, 27, 28 and January 1, 3 and 4. As 22 discussed above, three additional days are provided to defendants because plaintiff mailed the 23 amended complaint to them. Based on these computational rules, defendants' answer or motion 24 25 Plaintiff incorrectly cites Civil Local Rule 7.1(e)(3) in support of his argument: "FIVE (5) COURT DAYS TO RESPOND TO AMENDED COMPLAINT." But Civil Local 26 Rule 7.1(e)(3) is directed to a reply to a pending motion and not to responding to an amended 27 complaint. Although plaintiff is appearing without counsel, citations to clearly inapplicable law is disingenuous at best. 28 2 Federal Rule of Civil Procedure 6(a)(4) sets forth that Christmas Day and New Year's Day are legal holidays.
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1 to dismiss was due for filing on January 7, 2009. Defendants' motion to dismiss was filed on 2 January 5, 2009. Because defendants' response to the FAC was timely, entry of default is not 3 warranted. 4 Accordingly, plaintiff's motion for default judgment is DENIED. To the extent

5 plaintiff's motion for default judgment is intended to be a request for entry of default, the request 6 is DENIED. 7 IT IS SO ORDERED.

8 DATED: January 13, 2009 9 10 11 COPY TO: 12 HON. JAN M. ADLER UNITED STATES MAGISTRATE JUDGE 13 14 ALL PARTIES/COUNSEL 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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M. James Lorenz United States District Court Judge