Jones v. Director of Corrections

Filing 47

ORDER Denying Petitioner's Motions for Entry of Default ( 44 and 46 ). Signed by Magistrate Judge Bernard G. Skomal on 8/16/16. (All non-registered users served via U.S. Mail Service)(dlg)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

EDWARD JONES,

Case No.: 15cv1002-GPC-BGS
Petitioner,

12
13
14

ORDER DENYING PETITIONER’S
MOTIONS FOR ENTRY OF
DEFAULT

v.
JEFFREY BEARD, Secretary
Respondent.

15

[ECF Nos. 44 and 46.]

16
17

I.

INTRODUCTION

18

Petitioner is a state prisoner proceeding pro se with a Petition for a Writ of Habeas

19

Corpus pursuant to 28 U.S.C. § 2254. Currently before the Court are Petitioner’s

20

Motions for Entry of Default. The Court notes that Petitioner filed two motions for entry

21

of default, on July 13, 2016 and again on August 2, 2016. [ECF Nos. 44 and 46.] The

22

Court’s review of the two motions reveals that the second motion provides additional

23

exhibits, including the original motion for entry of default; however, the request for relief

24

is identical. For the reasons explained below, both of Petitioner’s motions for entry of

25

default are DENIED.

26

II.

PROCEDURAL BACKGROUND

27

On March 30, 2016, the Court ordered Respondent to file an answer to Petitioner’s

28

Due Process and Equal Protection claims on or before May 1, 2016. [ECF No. 32.] On
1
15cv1002-GPC-BGS

1

April 28, 2016, Respondent filed an ex parte application for an extension of time to

2

answer. [ECF No. 33.] On April 29, the Court issued an order granting Respondent an

3

extension of time, through May 31, 2016, to file the answer. [ECF No. 35.] Respondent

4

filed a second ex parte application for an extension of time to answer on May 27, 2016.

5

[ECF No. 36.] The Court granted Respondent a second extension to file an answer to the

6

Petition for Writ of Habeas Corpus until June 28, 2016. [ECF No. 37.] Respondent filed

7

an answer on June 27, 2016. [ECF No. 38.]

8

III.

9

Rule 55 of the Federal Rules of Civil Procedure authorizes the entry of a default

10

judgment “when a party against whom a judgment for affirmative relief is sought has

11

failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.”

12

Default judgments are generally disfavored; the Court prefers that a case should be

13

decided on the merits. Levi Strauss & Co. v. Toyo Enter. Co., 665 F. Supp. 2d 1084,

14

1098 (N.D. Cal. 2009) (citing Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814

15

(9th Cir. 1985)).

STANDARD OF REVIEW

16

IV.

17

Petitioner alleges in separate motions that as of July 13, 2016 and August 1, 2016,

18

Respondent had not filed an answer or a timely ex parte application to extend the time to

19

file an answer. Petitioner alleges Respondent is in default of the court order. Petitioner

20

requests that the Court enter default judgment against Respondent, declare that

21

Respondent has waived its right to defend against the Petitioner for Writ of Habeas

22

Corpus, and issue an order granting Petitioner’s writ in full.

23

DISCUSSION AND ORDER THEREON

Having reviewed Petitioner’s claims, Petitioner’s requests for entry of default

24

judgment must be denied because Respondent has not failed to plead or defend.

25

Specifically, the docket shows that Respondent filed two timely ex parte applications for

26

an order extending the time to file an answer. [ECF Nos. 33 and 36.] The Court granted

27

both applications, and ordered Respondent to file an answer by June 28, 2016. [ECF

28

Nos. 35 and 37.] Respondent filed a timely answer to the Petition for Writ of Habeas
2
15cv1002-GPC-BGS

1

Corpus on June 27, 2016. [ECF No. 38.] Thus, as found above, Respondent has not

2

failed to plead or otherwise defend and default judgment is not warranted under Rule 55

3

of the Federal Rules of Civil Procedure.

4

Respondent filed a timely answer to the Petition for Writ of Habeas Corpus and

5

therefore is not in default of the Court’s orders. Accordingly, Petitioner’s motions for

6

entry of default are DENIED.

7

Dated: August 16, 2016

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
15cv1002-GPC-BGS