King v. Fiero ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TRISTIN D. KING, Case No.: 20-CV-1254 JLS (AHG) 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 vs. REQUEST FOR ENTRY OF DEFAULT 14 15 C/O FIERO; C/O WOLLESEN, (ECF No. 25) 16 Defendants. 17 18 19 20 Presently before the Court is Plaintiff Tristin D. King’s Motion of Request for Entry 21 of Default (“Mot.,” ECF No. 25). Plaintiff, currently housed at the Richard J. Donovan 22 Correctional Facility in San Diego, California, is proceeding pro se and in forma pauperis 23 (“IFP”) in this civil rights action pursuant to 42 U.S.C. § 1983. See ECF No. 1, (“Compl.”); 24 see also ECF No. 5, at 5 (granting IFP status and directing the U.S. Marshal to effect service 25 of the Complaint). Plaintiff “request[s] that the clerk enter the entry of default pursuant to 26 the Federal Rules of Civil Procedure, as the Defendant has failed to file a Responsive 27 Pleading within the time allowed by law.” Id. at 7. For the reasons stated below, the Court 28 DENIES Plaintiff’s request. 1 Plaintiff initiated this action on July 2, 2020, and Plaintiff’s Complaint survived the 2 Court’s pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) on 3 August 19, 2020. ECF No. 5. On December 29, 2020, Defendants filed a motion to dismiss 4 (ECF No. 9), which the Court denied on July 19, 2021 (ECF No. 18). On August 5, 2021, 5 the Court ordered Defendants to file a responsive pleading (ECF No. 19). Defendants filed 6 an ex parte application requesting an extension of time to file an answer on August 9, 2021 7 (ECF No. 20), which the Court granted (ECF No. 21). The Court granted Defendants until 8 September 2, 2021 to file a responsive pleading. ECF No. 21. Defendants subsequently 9 filed their answer on August 30, 2021 and certified that they served the answer on Plaintiff 10 by first-class mail. ECF No. 22. Plaintiff states that as of September 8, 2021, he “has not 11 been served with any responsive pleading from Defendants[.]” Mot. at 6–7. 12 Pursuant to Federal Rule of Civil Procedure 55(a), the Clerk of Court must enter a 13 default “[w]hen a party against whom judgment for affirmative relief is sought has failed 14 to plead or otherwise defend.” Here, entry of default is not appropriate because there has 15 been no showing that Defendants “ha[ve] failed to plead or otherwise defend” this action. 16 Fed. R. Civ. P. 55(a). To the contrary, Defendants timely filed an answer to Plaintiff’s 17 Complaint on August 30, 2021, and certified that they mailed a copy of the answer to 18 Plaintiff the same day. See ECF No. 22 at 10. 19 Therefore, the Court DENIES Plaintiff’s request for entry of default. See Langley 20 v. Tulare Police Dep’t, No. 116CV00336DADSKO, 2017 WL 633901, at *2 (E.D. Cal. 21 Feb. 15, 2017) (denying request for entry of default where defendant had timely answered 22 and mailed plaintiff a copy the same day); Mitchell v. Gilbert, No. C09–5080–BHS, 2010 23 WL 1186192, at *1 (W.D. Wash. Mar. 23, 2010) (denying request for entry of default 24 “because all defendants filed an answer within 60 days of accepting service by mail,” and 25 “[t]herefore, no defendant was in default.”); see also Brinkley v. Skjonsberg, 60 F.3d 832 26 /// 27 /// 28 /// 1 || (9th Cir. 1995) (affirming the district court’s denial of motion for default judgment against 2 ||a defendant where the defendant filed an answer). 3 IT IS SO ORDERED. 4 ||Dated: September 17, 2021 tt 5 jen Janis L. Sammartino 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 □□