(PC) Garces v. Gamboa ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS MANUEL GARCES, Case No. 1:21-cv-00392-JLT-EPG (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF’S 14 D. HERNANDEZ, et al., REQUEST FOR ENTRY OF DEFAULT BE DENIED 15 Defendants. (ECF No. 52.) 16 OBJECTIONS, IF ANY, DUE WITHIN 17 FOURTEEN (14) DAYS 18 Plaintiff Luis Manuel Garces (“Plaintiff”) is a state prisoner proceeding pro se and in 19 forma pauperis in this action pursuant to 42 U.S.C. § 1983. On July 19, 2022, Plaintiff filed a 20 request for entry of default against Defendants Allison, Hernandez, Hubbard, Cathey, Wolf, 21 Huerta, Ravijot, Ibarra, Camacho, Argon, Ramadan, and Boyd1 (“Defendants”). (ECF No. 52.) 22 For the following reasons, the Court recommends that Plaintiff’s request be denied. 23 I. LEGAL STANDARDS 24 Federal Rule of Civil Procedure 55 provides, “[w]hen a party against whom a judgment 25 for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown 26 by affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). Before a 27 1 Plaintiff also requested entry of default against Gamboa, who has been terminated from this case and is not a 28 defendant. (See ECF Nos. 18, 21.) 1 default will be entered, the clerk must be satisfied from the request and accompanying 2 documentation that: 1) the defendant has been served with the summons or has agreed to waive 3 serve; 2) the time allowed by law for responding has expired; and 3) the defendant has failed to 4 file a pleading or motion permitted by law. U.S. ex rel. Felix Haro Const., Inc. v. St. Paul Fire 5 and Marine Ins. Co., 2009 WL 1770156, at *3 (E.D. Cal. June 23, 2009) (citing Hawaii 6 Carpenters’ Trust Funds v. Stone, 794 F.2d 508, 512 (9th Cir. 1986)); see also Chambers v. 7 Knight, 2019 WL 1923936, at *2 (S.D. Cal. Apr. 30, 2019) (“A default may not enter against a 8 defendant unless the plaintiff has properly served the defendant.”). 9 Federal Rule of Civil Procedure 4 governs service of the summons and provides: 10 (e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual--other than a minor, an incompetent 11 person, or a person whose waiver has been filed--may be served in a judicial district of the United States by: 12 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where 13 service is made; or (2) doing any of the following: 14 (A) delivering a copy of the summons and of the complaint to the individual personally; 15 (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or 16 (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. 17 . . . 18 (j) Serving a Foreign, State, or Local Government. (1) Foreign State. A foreign state or its political subdivision, agency, or 19 instrumentality must be served in accordance with 28 U.S.C. § 1608. (2) State or Local Government. A state, a municipal corporation, or any other 20 state-created governmental organization that is subject to suit must be served by: 21 (A) delivering a copy of the summons and of the complaint to its chief executive officer; or 22 (B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant. 23 Fed. R. Civ. P. 4(e), (j). California law, in turn, permits service by personal delivery as well as 24 substitute service on an individual: 25 If a copy of the summons and complaint cannot with reasonable diligence be 26 personally delivered to the person to be served ... a summons may be served by 27 leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a 28 United States Postal Service post office box, in the presence of a competent 1 member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal 2 Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the 3 complaint by first-class mail, postage prepaid to the person to be served at the 4 place where a copy of the summons and complaint were left. 5 Cal. Code Civ. Proc. § 415.20(b); see also Cal. Code Civ. Proc. § 415.10. California law further 6 permits service on public entities by delivering a copy of the summons and complaint to the clerk, 7 secretary, president, presiding officer, or other head of its governing body. Cal. Code Civ. Proc. § 8 416.50. 9 II. DISCUSSION 10 Defendants were served with the summons and operative complaint through the Court’s 11 E-Service pilot program for civil rights cases. (ECF No. 22.) Defendants returned waivers of 12 service on April 8, 2022, April 13, 2022, and May 13, 2022. (ECF Nos. 35, 39.) Defendants filed 13 their first request for an extension of time to file a responsive pleading on April 11, 2022. (ECF 14 No. 39.) The Court granted the request and extended the responsive pleading deadline to July 11, 15 2022. (ECF No. 41.) On July 8, 2022, Defendants requested a second extension of the responsive 16 pleading deadline, which Plaintiff opposed. (ECF Nos. 48, 49.) The Court entered an order on July 19, 2022 granting the motion and extending Defendants’ responsive pleading deadline to 17 August 11, 2022. (ECF No. 50.) 18 Plaintiff’s request for entry of default is dated July 5, 2022, before Defendants’ previous 19 responsive deadline expired and before the Court issued an order further extending the deadline to 20 August 11, 2022. Therefore, Defendants are not in default because the time to respond has not yet 21 expired. The Court will accordingly recommend that Plaintiff’s request for entry of default be 22 denied. 23 III. CONCLUSION AND RECOMMENDATION 24 In light of the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s request for 25 entry of default against Defendants (ECF No. 52) be denied. 26 These findings and recommendations are submitted to the United States district judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 28 1 | (14) days after being served with these findings and recommendations, any party may file written 2 | objections with the court. Such a document should be captioned “Objections to Magistrate 3 | Judge’s Findings and Recommendations.” Any response to the objections shall be served and 4 | filed within fourteen (14) days after service of the objections. The parties are advised that failure 5 | to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson 6 | v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 7 | (9th Cir. 1991)). 8 9 IT IS SO ORDERED. 10! Dated: _ July 20, 2022 [sf ey ll UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28