Cook v. Sims ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RON COOK, Case No. 1:21-cv-01478-AWI-EPG 11 Plaintiff, ORDER REQUIRING RESPONSE REGARDING ENTRY OF DEFAULT, 12 v. UNTIMELY ANSWER 13 (ECF No. 13, 20) RON SIMS, et al., 14 Defendants. 15 16 Plaintiff Ron Cook proceeds through counsel in this civil rights action against Defendants 17 Ron Sims, James Funk, Salina Correa, Floyd Avila, Flor Garcia, and Pacific Valley Security 18 Patrol. (ECF No. 1). This matter is before the Court on the answer filed by Defendants Pacific 19 Valley Security Patrol and Flor Garcia. As explained below, the Court will require Defendant 20 Pacific Valley Security Patrol to file a response to this order regarding the entry of default against 21 it and the untimely answer and Defendant Flor Garcia to file a response regarding the untimely 22 answer. 23 Plaintiff filed this lawsuit on October 1, 2021. (ECF No. 1). Based on Plaintiff’s 24 representations that Defendant Pacific Valley Security Patrol was served on November 23, 2021, 25 and had failed to timely respond to the complaint, Plaintiff obtained a clerk’s entry of default 26 under Federal Rule of Civil Procedure 55(a) on February 11, 2022. (ECF Nos. 9, 12, 13). 27 Defendant Pacific Valley Security Patrol has not filed a motion to set aside the default, 28 1 nor has it explained why its answer was filed nearly a year late. See Fed. R. Civ. P. 12(a)(1)(A)(i) 2 (providing twenty-one days for a defendant to file an answer after being served with the summons 3 and complaint). As to Defendant Flor Garica, Plaintiff submitted a proof of service reflecting that 4 this Defendant was served on February 10, 2022. (ECF No. 14). However, Defendant Flor Garcia 5 has not explained why the answer was filed approximately eight months late. 6 As to Defendant Pacific Valley Security Patrol, once a clerk’s entry of default is entered, 7 the complaint’s factual allegations, except those related to damages, will be taken as true. 8 TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987); see Guardado v. Nevada, 9 No. 2:18-CV-00198-GMN-VCF, 2019 WL 13076591, at *1 (D. Nev. Sept. 30, 2019) (“Upon 10 entry of a clerk’s default, the court takes the factual allegations in the complaint as true.”). Under 11 Rule 55(c), “[t]he court may set aside an entry of default for good cause.” See Brandt v. Am. 12 Bankers Ins. Co. of Fla., 653 F.3d 1108, 1111 (9th Cir. 2011) (discussing factors for good-cause 13 showing). However, the Court is unable to determine whether the default should be set aside 14 without any argument from Defendant Pacific Valley Security Patrol. 15 In light of the above discussion, IT IS ORDERED as follows: 16 1. By no later than November 18, 2022, Defendant Pacific Valley Security Patrol 17 shall file a response explaining why the Court should set aside the entry of default 18 and not issue sanctions regarding the untimely answer. 2. By no later than November 18, 2022, Defendant Flor Garcia should submit a 19 response explaining why the Court should not issue sanctions regarding the 20 untimely answer. 21 3. By no later than November 25, 2022, Plaintiff may file any response to 22 Defendants’ filings. 23 \\\ 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 1 4. Alternatively, if the parties are able to come to an agreement regarding 2 Defendants’ untimely answer, they shall file an appropriate stipulation on the 3 record by no later than November 18, 2022. In such case, the Court will not 4 require Defendants to otherwise respond to this order. 5 IT IS SO ORDERED. 6 7 Dated: _ November 3, 2022 [sf heey UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28