Davis v. High Desert State Prison

Full title: TERRENCE L. DAVIS, Plaintiff, v. HIGH DESERT STATE PRISON, et al.…

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Dec 13, 2013

2:11-cv-2296-CMK-P (E.D. Cal. Dec. 13, 2013)

Opinion

TERRENCE L. DAVIS, Plaintiff, v. HIGH DESERT STATE PRISON, et al., Defendants. No. 2:11-cv-2296-CMK-P United States District Court, E.D. California. December 13, 2013

          ORDER

          CRAIG M. KELLISON, Magistrate Judge.

         Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion for default judgment (Doc. 42), defendants' opposition thereto (Doc. 43), and plaintiff's motion for additional time to file a reply (Doc. 45). Plaintiff is requesting the court enter default judgment against the defendants for failure to timely respond to the complaint pursuant to Federal Rule of Civil Procedure 55.

         A defendant is not in "default" unless he "has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise." Fed. R. Civ. Proc. 55(a). A party generally has 20 after being served with the summons and complaint to file a responsive pleading. See Fed. R. Civ. Proc. 12(a). However, if the party has timely waived service under Rule 4(d), a responsive pleading is timely if filed within 60 days after the request for a waiver was sent. See id. The time for filing a responsive pleading may also be extended by stipulation or court order. Once a responsive pleading is filed with the court, even if untimely, no default may be entered. Therefore, if an untimely responsive pleading is filed with the court prior to any request for entry of default, the defendant is no longer in default.

         Here, plaintiff's motion was signed on July 27, 2013, but the proof of service indicates it was not mailed to the court until August 20, 2013. The court received and filed the motion on August 26, 2013. However, the court received defendants' motions to dismiss on July 31, 2013, and August 12, 2013, before plaintiff's motion was sent to or received by the court. Thus, the defendants responded to the complaint prior to the request for default and no default may be entered at this time.

         As there is no possible argument plaintiff could make in reply that would alter the outcome of the motion, plaintiff's motion for additional time to file his reply is denied.

         Accordingly, IT IS HEREBY ORDERED that:

         1. Plaintiff's motion for default (Doc. 42) is denied); and

         2. Plaintiff's motion for an extension of time (Doc. 45) is denied.