Ingram v. Sterling et al

Filing 28

ORDER Denying 25 Motion for Entry of Default. Signed by Magistrate Judge David H. Bartick on 8/16/16. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 14-cv-02691-GPC (DHB)

CURTIS CLIFFORD INGRAM,
Plaintiff,

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v.

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ORDER DENYING MOTION FOR
ENTRY OF DEFAULT

K. STERLING, et al.,

(ECF No. 25)
Defendants.

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On May 25, 2016, Plaintiff filed a Motion for Entry of Default. (ECF No. 25.)

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Plaintiff requests entry of default against Defendant K. Sterling pursuant to Rule 55 of the

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Federal Rules of Civil Procedure. (Id.) Rule 55(a) provides that “[w]hen a party against

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whom a judgment for affirmative relief is sought has failed to plead or otherwise defend,

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and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.”

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Fed. R. Civ. P. 55(a).

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On April 15, 2016, Plaintiff filed a Second Amended Complaint (“SAC”) against

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Defendants K. Sterling, K. Balakian, K.A. Seibel, and D. Paramo (collectively

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“Defendants”), alleging retaliation, right to free speech, and right to redress grievances

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(Counts 1-3) against Defendant Sterling, and deliberate indifference and acquiescence

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against Defendants Balakian, Seibel, and Paramo. (ECF No. 18.) On April 28, 2016,

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Defendants filed a Motion to Dismiss Portions of Plaintiff’s SAC pursuant to Rule 12(b)(6)
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14-cv-02691-GPC (DHB)

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of the Federal Rules of Civil Procedure, which is currently pending before this Court. (ECF

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No. 22.)

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administrative remedies before filing suit. (ECF No. 22-1 at pp. 10-12.) Defendants

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further argue Plaintiff has failed to state a retaliation claim in Count 3, and Defendants are

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entitled to qualified immunity on Count 3. (Id. at pp. 12-16.) Defendants also argue

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Plaintiff fails to state claims for free speech, right to redress grievances, deliberate

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indifference, and supervisor liability. (Id. at pp. 16-21.) In their conclusion, Defendants

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concede that they do not move to dismiss the retaliation claims incorporated in Counts 1

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and 2 against Defendant Sterling. (Id. at p. 22.)

Defendants move to dismiss Count 3, arguing Plaintiff failed to exhaust

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Defendant now argues that because Defendant Sterling did not answer or otherwise

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defend the retaliation claims incorporated in Counts 1 and 2, default should be entered on

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these claims. (ECF No. 25 at 1-2.) For the reasons set forth below, the Court denies

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Plaintiff’s request to enter default against Defendant Sterling.

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Federal Rule of Civil Procedure 12(a)(4) provides that a Rule 12 motion tolls the

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time period within which a defendant must file a responsive pleading. Fed. R. Civ. P.

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12(a)(4). The majority of courts have concluded that Rule 12(a)(4) also applies to a partial

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Rule 12(b) motion, tolling the time period for filing an answer to all claims contained in

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the complaint, not just the claims for which the motion seeks dismissal. See Abbott v.

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Rosenthal, 2 F. Supp. 3d 1139, 1142-43 (D. Idaho 2014) (citing ThermoLife Int’l, LLC v.

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Gaspari Nutrition, Inc., No. CV 11-01056-PHX-NVW, 2011 WL 6296833, at *5 (D. Ariz.

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Dec. 16, 2011) (“[T]he majority of courts have expressly held that even though a pending

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motion to dismiss may only address some of the claims alleged, the motion to dismiss tolls

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the time to respond to all claims.”)); Talbot v. Sentinel Ins. Co., Ltd., No. 2:11-cv-01766-

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KJD-CWH, 2012 WL 1068763, at *4 (D. Nev. Mar. 29, 2012) (collecting cases); Palantir

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Techs., Inc. v. Palantir.net, Inc., No. C 10-04283, 2011 WL 62411 (N.D. Cal. Jan. 7, 2011)

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(acknowledging the majority rule in the Ninth Circuit); Pestube Sys., Inc. v. HomeTeam

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Pest Defense, LLC, No. CIV-05-2832-PHX-MHM, 2006 WL 1441014, at *7 (D. Ariz. May

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24, 2006) (collecting cases). “Otherwise, a defendant would have to file an answer as to
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any claims not subject to the motion to dismiss, only to file a second or amended answer

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later if the motion is denied.” Id. at 1143. To further the important goal of judicial

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efficiency, this Court concludes in accordance with the majority rule that Defendants are

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not required to answer any part of the SAC prior to the Court’s decision on Defendants’

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Motion to Dismiss Portions of Plaintiff’s SAC. Therefore, Plaintiff’s Motion for Entry of

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Default is DENIED.

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IT IS SO ORDERED.
Dated: August 16, 2016
_________________________
DAVID H. BARTICK
United States Magistrate Judge

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14-cv-02691-GPC (DHB)