Contreraz v. Salazar et al

Filing 24

ORDER (1) Denying 23 Motion for Default Judgment ; (2) Denying 23 Motion for finding of Contempt; (3) and Denying 23 Motion for enforcement of relief against non-parties. Signed by Judge Irma E. Gonzalez on 1/30/12. (All non-registered users served via U.S. Mail Service)(ecs) (jrl).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LOFOFORA EVA CONTRERAZ also
known as Mike Contreraz,

CASE NO. 11cv265 - IEG (PCL)
ORDER:

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Plaintiff,
(1) DENYING MOTION FOR
DEFAULT JUDGMENT;

vs.

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(2) DENYING MOTION FOR
FINDING OF CONTEMPT; AND

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(3) DENYING MOTION FOR
ENFORCEMENT OF RELIEF
AGAINST NON-PARTIES

KEN SALAZAR, Secretary of the USDI; M.
SHARON BLACKWELL, Deputy
Commissioner of Indian Affairs; DOE 1,
Acting Deputy Assistant Secretary, Policy
and Economic Development; and DOES 110, inclusive,

[Doc. No. 23]

Defendants.

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Presently before the Court is Plaintiff’s motion for default judgment pursuant to Federal
Rule of Civil Procedure 55, motion for a finding of contempt pursuant to Federal Rule of Civil
Procedure 70(e), and motion for enforcement of relief against non-parties pursuant to Federal Rule
of Civil Procedure 71. [Doc. No. 23.] For the reasons below, the Court DENIES the motions.
BACKGROUND
Plaintiff commenced this action against Defendants on February 7, 2011. [Doc. No. 1.]
On June 9, 2011, the Court granted Plaintiff leave to proceed in forma pauperis, but dismissed
Plaintiff’s complaint without prejudice pursuant to the screening provision of 28 U.S.C. §
1915(e)(2)(B). [Doc. No. 8.] The Court gave Plaintiff leave to file a first amended complaint
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(“FAC”). [Id.] On July 21, 2011, Plaintiff filed her FAC. [Doc. No. 9.] On October 13, 2011, the

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Court issued an order directing the U.S. Marshal to effect service of Plaintiff’s FAC on the

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Defendants. [Doc. No. 14.] On January 20, 2012, Defendants filed a motion to dismiss Plaintiff’s

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FAC. [Doc. No. 19.]

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DISCUSSION
I.

Motion for Default Judgment

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Plaintiff moves for default judgment against Defendants, arguing that none of the

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Defendants have answered, appeared, or otherwise replied to Plaintiff’s FAC. [Doc. No. 23 at 2.]

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Plaintiff is not entitled to default judgment. Pursuant to the Federal Rules of Civil Procedure, an

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entry of default by the Clerk of Court is a prerequisite to an entry of default judgment. See Fed. R.

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Civ. P. 55(a), (b). In this case, a review of the docket reveals that the Clerk of Court never entered

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a default against any of Defendants. Accordingly, because there has been no entry of default yet,

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the Court cannot enter a default judgment in Plaintiff’s favor.

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Moreover, even if the Clerk of Court should have construed Plaintiff’s filing as a request to

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enter default, the Clerk of Court properly did not enter default because Defendants are not in

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default. Under Federal Rule of Civil Procedure 12(a)(2), a United States officer or employee must

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serve a response pleading within 60 days after service on the United States attorney. Defendants

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were served on October 31, 2011, [Doc. No. 17], making their response to the FAC due by

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December 30, 2011. On December 28, 2011, Defendants moved for an extension of time to

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respond to the FAC. [Doc. No. 17.] The Court granted Defendants’ motion and ordered

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Defendants to file a response to Plaintiff’s FAC on or before January 20, 2012. [Doc. No. 18.] On

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January 20, 2012, Defendants timely responded to Plaintiff’s FAC by filing a motion to dismiss

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the FAC. [Doc. No. 19.] Accordingly, Defendants have never been in default, and the Court

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DENIES Plaintiff’s motion for default judgment.

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II.

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Motion for Contempt
Plaintiff requests that this Court find Defendants to be in contempt pursuant to Federal

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Rule of Civil Procedure 70(e) for failure to timely respond to her FAC. [Doc. No. 23 at 2-3.]

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First, as explained above, Defendants’ response to Plaintiff’s FAC was not untimely. Second,
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Rule 70 “cannot be used as the authority for contempt or sanctions where defendants failed to

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answer on time.” McCabe v. Arave, 827 F.2d 634, 639 (9th Cir. 1987). Rule 70 is only operative

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when a party refuses to comply with a judgment. Id. Here, there has been no judgment, so Rule

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70 does not apply. District courts do have the power to impose sanctions by exercising their

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inherent powers upon a finding of bad faith. Id. at 640. However, because Defendants timely

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responded to Plaintiff’s FAC, the Defendants have not acted in bad faith. Accordingly, the Court

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DENIES Plaintiff’s motion for a finding of contempt.

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III.

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Motion for Enforcement of Relief Against Non-Parties
Plaintiff moves for enforcement of relief against non-parties Wells Fargo & Co. and the

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Pala Band of Mission Indians pursuant to Federal Rule of Civil Procedure 71. [Doc. No. 23 at 2.]

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Federal Rule of Civil Procedure 71 provides: “When an order grants relief for a nonparty or may

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be enforced against a nonparty, the procedure for enforcing the order is the same as for a party.”

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Rule 71 memorializes “the common sense rule that courts can enforce their orders against both

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parties and non-parties.” Westlake North Property Owners Ass’n v. Thousand Oaks, 915 F.2d

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1301, 1304 (9th Cir. 1990). Because the Court does not grant Plaintiff’s motion for default

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judgment, there is no order that may be enforced against the non-parties. Accordingly, the Court

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DENIES Plaintiff’s motion for enforcement of relief against non-parties.

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CONCLUSION
For the reasons above, the Court DENIES Plaintiff’s motion for default judgment, motion
for finding of contempt, and motion for enforcement of relief against non-parties.
IT IS SO ORDERED.
DATED: January 30, 2012

______________________________
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IRMA E. GONZALEZ
United States District Judge

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