Flores v. San Diego Police Department et al

Filing 52

REPORT AND RECOMMENDATION re 44 MOTION for Entry of Default. This Report and Recommendation will be submitted to the United States District Court judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any party m ay file written objections with the Court and serve a copy on all parties on or before 5/19/2017. The document should be captioned Objections to Report and Recommendation. Any reply to the objections shall be served and filed on or before 6/2/2017. Signed by Magistrate Judge Ruben B. Brooks on 4/21/2017.(All non-registered users served via U.S. Mail Service)(acc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

RAFAEL FLORES,

Case No.: 15cv2024 AJB (RBB)
Plaintiff,

12
13

v.

14

REPORT AND
RECOMMENDATION GRANTING
MOTION FOR DEFAULT
[ECF NO. 44]

SAN DIEGO POLICE DEPARTMENT et
al.,

15
16

Defendants.

17
18
19
20
21
22
23
24
25
26
27
28

On January 5, 2017, Counterclaimants City of San Diego and John Sullivan (the
“Counterclaimants”) filed a “Request for Entry of Default of Counter-Defendant Rafael
Flores as to Any and All Counterclaims Asserted by Counterclaimants City of San Diego
and Officer John Sullivan” (the “Motion for Default”) [ECF No. 44]. No opposition to or
reply in support of the Motion for Default was filed. For the reasons discussed below, the
Motion for Default [ECF No. 44] should be GRANTED, and the Clerk of Court should
enter a default against Plaintiff as to the Counterclaims.
I. BACKGROUND
Plaintiff Rafael Flores filed his lawsuit against several Defendants on September
10, 2015 [ECF No. 1]. On November 25, 2015, the Defendants filed a Motion to Dismiss
or for a More Definite Statement [ECF No. 16]. The Court issued a Report and
1
15cv2024 AJB (RBB)

1

Recommendation granting in part and denying in part Defendants’ motion [ECF No. 29],

2

which was adopted by United States District Court Judge Anthony J. Battaglia on August

3

22, 2016 [ECF No. 31]. On October 24, 2016, Defendants filed a document entitled,

4

“Defendants’ Answer to Plaintiff’s Complaint Under the Civil Rights Act 42 U.S.C. §

5

1983; Counterclaims of Counterclaimant City of San Diego and Officer Sullivan; and

6

Attached Exhibit A” (the “Counterclaims”) [ECF No. 32]. In this filing,

7

Counterclaimants City of San Diego1 and John Sullivan pleaded claims against Flores for

8

negligent resisting arrest and assault and battery. (Defs.’ Answer Pl.’s Compl. &

9

Countercls. 14-15, Oct. 24, 2016, ECF No. 32.)2 They seek damages and other relief in

10

connection with these claims. (Id. at 15-16.)

11

The Counterclaims were served on Plaintiff four separate times. First, they were

12

mailed to Flores on October 24, 2016. (See id. Attach. #2 Certificate Serv. 2-3, Oct. 24,

13

2016.) This pleading was again mailed to Plaintiff on November 17, 2016. (Certificate

14

Serv. 2-3, Nov. 17, 2016, ECF No. 36.) The Counterclaims were then personally served

15

on Flores while he was appearing in San Diego Superior Court on November 30, 2016.

16

(Certificate Serv. 2-3, Nov. 30, 2016, ECF No. 37.) Plaintiff was again served by mail on

17

December 7, 2016. (Certificate Serv. 3-4, Jan. 5, 2017, ECF No. 43.) Flores did not file

18

a responsive pleading to the Counterclaims. On January 5, 2017, the Counterclaimants

19

filed the Motion for Default [ECF No. 44].

20

II. LEGAL STANDARD

21

The Federal Rules of Civil Procedure provide, “When a party against whom a

22

judgment for affirmative relief is sought has failed to plead or otherwise defend, and that

23

failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” Fed.

24
25

26

1

27

The City of San Diego was not a named Defendant in Plaintiff’s Complaint. (See
Compl. 1-2, ECF No. 1.)

28

2

The Court will cite to documents as paginated on the electronic case filing system.
2
15cv2024 AJB (RBB)

1

R. Civ. P. 55(a). In most cases, however, a default does not automatically entitle a party

2

to a default judgment. See 10 James Wm. Moore, et al., Moore’s Federal Practice

3

§ 55.10[1], at 55-14 (3d ed. 2017) (footnotes omitted) (“Rule 55 requires a two-step

4

process. The first step, entry of default, is a ministerial matter performed by the clerk and

5

is a prerequisite to a later default judgment.”). The clerk of the court must enter a default

6

judgment “[i]f the plaintiff’s claim is for a sum certain or a sum that can be made certain

7

by computation.” Fed. R. Civ. P. 55(b)(1). “In all other cases, the party must apply to

8

the court for a default judgment.” Id. (b)(2)

9

Generally, “[i]f a defendant fails to respond to a complaint, default judgment may

10

be entered on behalf of the plaintiff.” Fed. Mar. Comm’n v. S.C. State Ports Auth., 535

11

U.S. 743, 757 (2002) (citation omitted) (discussing the Federal Maritime Commission

12

Rules of Practice and noting the similarity to the Federal Rules of Civil Procedure).

13

Service of process must be properly completed before a default judgment may be entered.

14

Jacobs v. Tenney, 316 F. Supp. 151, 165-66 (D. Del. 1970). But “default judgments are

15

ordinarily disfavored.” Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). “Cases

16

should be decided upon their merits whenever reasonably possible.” Id. (citing Pena v.

17

Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985)).

18
19

III. DISCUSSION
In their Motion for Default, Counterclaimants contend that Plaintiff failed to

20

defend the claims against him within the time required by the Federal Rules of Civil

21

Procedure. (Mot. Default 2, ECF No. 44 (citations omitted).) They served the

22

Counterclaims on Flores both personally and by mail. (See id. at 3 (citations omitted).)

23

The Counterclaimants further state that in a telephone conversation with defense counsel

24

on December 7, 2016, Plaintiff acknowledged that he had been served with the

25

Counterclaims and that he was required to respond by December 21, 2016. (Id. at 3-4

26
27
28
3
15cv2024 AJB (RBB)

1

(citations omitted).)3 The contents of this phone conversation were memorialized in a

2

letter sent to Flores the same day. (Id. at 4 (citations omitted).) Counterclaimants

3

indicate, however, that Flores failed to respond to the claims against him by December

4

21, 2016. (Id. at 5.) As a result, they ask that a default be entered against Plaintiff “for

5

failure to timely plead or otherwise defend against the Counterclaimants’

6

Counterclaims.” (Id.)

7

Federal Rule of Civil Procedure 12(a)(1)(B) states that “[a] party must serve an

8

answer to a counterclaim or crossclaim within 21 days after being served with the

9

pleading that states the counterclaim or crossclaim.” Fed. R. Civ. P. 12(a)(1)(B). Flores

10

was properly served with the Counterclaims on four separate occasions [ECF Nos. 32, 36,

11

37, 43]. Even if the Court were to use December 7, 2016, the last date Plaintiff was

12

served, as the date of service, his deadline to respond to the Counterclaims was January 3,

13

2017. See Fed. R. Civ. P. 12(a)(1)(B); see also Fed. R. Civ. P. 6(d) (“When a party may

14

or must act within a specified time after being served and service is made under Rule

15

5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to), 3 days

16

are added after the period would otherwise expire under Rule 6(a).”).

17

Flores has not filed any response to the Counterclaims. Nor has he made an

18

appearance in this case since filing a notice of change of address on August 18, 2016

19

[ECF No. 30]. Because Plaintiff did not respond to the Counterclaims by the deadline set

20

forth by the federal rules, a default should be entered against him. See Cook v. Olathe

21

Med. Ctr., Inc., Civil Action No. 10–2133–KHV, 2011 WL 1403176, at *1 (D. Kan. Apr.

22

13, 2011) (internal citation omitted) (“Pursuant to Rule 12(a)(1)(B), plaintiff had 21 days,

23

or until February 1, 2011, to file an answer or otherwise respond to the counterclaim.

24

Plaintiff did not do so. Because plaintiff has failed to plead or otherwise defend the

25

counterclaim, [defendant] is entitled to an entry of default under Rule 55(a).”).

26

27
3

28

The Counterclaimants incorrectly state that December 21, 2016, was the deadline for
Flores to respond to the Counterclaims.
4
15cv2024 AJB (RBB)

1
2
3

As a result, the Motion for Default [ECF No. 44] should be GRANTED, and the
Clerk of Court should enter a default against Flores as to the Counterclaims.
IV. CONCLUSION AND RECOMMENDATION

4

For the reasons discussed, the Motion for Default [ECF No. 44] should be

5

GRANTED. The Clerk of Court should enter a default against Plaintiff as to the

6

Counterclaims. This Report and Recommendation will be submitted to the United States

7

District Court judge assigned to this case, pursuant to the provisions of 28 U.S.C. §

8

636(b)(1). Any party may file written objections with the Court and serve a copy on all

9

parties on or before May 19, 2017. The document should be captioned “Objections to

10

Report and Recommendation.” Any reply to the objections shall be served and filed on

11

or before June 2, 2017.

12

The parties are advised that failure to file objections within the specified time may

13

waive the right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157

14

(9th Cir. 1991).

15

IT IS SO ORDERED.

16
17

Dated: April 21, 2017

18
19
20
21
22
23
24
25
26
27
28
5
15cv2024 AJB (RBB)