Lefever v. Gutheridge et al

Filing 16

ORDER Denying 13 Motion for Entry of Clerks Default and Denying 14 Motion to Compel. Signed by Judge Roger L. Hunt on 5/11/2011. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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FRANKLIN CARL LEFEVER,

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Plaintiff,
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vs.
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SCOTT GUTHERIDGE, et al,
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Defendants.
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_______________________________________)

Case No.: 2:10-cv-01917-RLH-PAL
ORDER
(Motion for Default–#13;
Motion to Compel Production
of Documents–#14)

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Before the Court is Plaintiff Franklin Carl Lefever’s Motion for Default (#13, May
6, 2011) against Defendant Nicholson.
Also before the Court is Plaintiff’s Motion to Compel Production of Documents

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(#14, May 9, 2011) requesting that the Nye County Detention Center be compelled to produce

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certain documents.

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BACKGROUND

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This dispute arises from Plaintiff’s allegations of civil rights violations under 42

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U.S.C. § 1983. On January 10, 2011, Plaintiff filed his Complaint (#3) in this Court. Plaintiff

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subsequently filed an Amended Complaint (#4), however, several procedural errors prompted the

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Court to dismiss the filing. (Dkt. #6, Screening Order, Mar. 3, 2011.) The Court ordered the

AO 72
(Rev. 8/82)

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action to proceed under the original Complaint (#3) as set forth in the January 10, 2011 Order (#2),

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which dismissed Counts II (with leave to amend) and III. As a result, the only operative claim in

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this case is Count I against Defendant Nicholson, a corrections deputy.

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After the Summons (#9) was returned executed, Nicholson had until April 28 to file

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an answer, but he failed to do so. Plaintiff then filed his motion for default against Nicholson and

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motion to compel. However, on May 10, Nicholson filed an answer to Plaintiff’s complaint. For

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the reasons discussed below, the Court denies Plaintiff’s motions.

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DISCUSSION
I.

Motion for Default
A.

Legal Standard

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Obtaining a default judgment is a process governed by Rule 55 of the Federal Rules

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of Civil Procedure. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). Rule 55(a) provides for

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default “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead

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or otherwise defend, and that failure is shown by affidavit or otherwise.” Nonetheless, a plaintiff

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is “not entitled to default judgment as a matter of right.” Warner Bros. Entm’t Inc. v. Caridi, 346

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F. Supp. 2d 1068, 1071 (C.D. Cal. 2004) (citation omitted). Instead, whether a court will grant a

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default judgment is in the court’s discretion. Id. (citations omitted). The Ninth Circuit Court of

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Appeals has identified the following factors as relevant to the exercise of the court’s discretion in

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determining whether to grant default judgment: (1) the possibility of prejudice to the plaintiff; (2)

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the merits of the plaintiff’s substantive claims; (3) the sufficiency of the complaint; (4) the sum of

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money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether

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the default was due to the excusable neglect; and (7) the strong policy underlying the Federal

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Rules of Civil Procedure favoring decisions on the merits. Eitel, 782 F.2d at 1471–72.

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AO 72
(Rev. 8/82)

B.

Analysis
Plaintiff based his motion on the fact that Nicholson failed to answer or otherwise

respond to his complaint. However, the situation has changed because Nicholson has now filed an
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Answer (#15). The Court finds that Plaintiff has not suffered any prejudice by the short period of

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time that lapsed between the deadline and Nicholson’s answer. Because of the strong policy

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favoring decisions on the merits in disputed cases, the Court also concludes that default is not

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appropriate for this case.

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II.

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Motion to Compel Production of Documents
The Court notes that a Rule 26(f) discovery plan and scheduling order has not been

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filed at this early stage of the case. See Rule 26-1, Local Rules of Practice. Discovery

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responses—including Plaintiff’s requests for production—was not required prior to Nicholson’s

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answer. Therefore, Plaintiff’s motion to compel is untimely. Accordingly, the Court denies

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Plaintiff’s motion.

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CONCLUSION

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Accordingly, and for good cause appearing,

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IT IS HEREBY ORDERED that Plaintiff’s Motion for Default (#13) is DENIED.

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Production of

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Documents (#14) is DENIED.
Dated: May 11, 2011

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____________________________________
ROGER L. HUNT
United States District Judge

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AO 72
(Rev. 8/82)

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