Opinion
20-CV-1254 JLS (AHG)
09-17-2021
TRISTIN D. KING, Plaintiff, v. C/O FIERO; C/O WOLLESEN, Defendants.
ORDER DENYING PLAINTIFF'S REQUEST FOR ENTRY OF DEFAULT (ECF No. 25)
Hon. Janis L. Sammartino United States District Judge
Presently before the Court is Plaintiff Tristin D. King's Motion of Request for Entry of Default (“Mot., ” ECF No. 25). Plaintiff, currently housed at the Richard J. Donovan Correctional Facility in San Diego, California, is proceeding pro se and in forma pauperis (“IFP”) in this civil rights action pursuant to 42 U.S.C. § 1983. See ECF No. 1, (“Compl.”); see also ECF No. 5, at 5 (granting IFP status and directing the U.S. Marshal to effect service of the Complaint). Plaintiff “request[s] that the clerk enter the entry of default pursuant to the Federal Rules of Civil Procedure, as the Defendant has failed to file a Responsive Pleading within the time allowed by law.” Id. at 7. For the reasons stated below, the Court DENIES Plaintiff's request.
Plaintiff initiated this action on July 2, 2020, and Plaintiff's Complaint survived the Court's pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) on August 19, 2020. ECF No. 5. On December 29, 2020, Defendants filed a motion to dismiss (ECF No. 9), which the Court denied on July 19, 2021 (ECF No. 18). On August 5, 2021, the Court ordered Defendants to file a responsive pleading (ECF No. 19). Defendants filed an ex parte application requesting an extension of time to file an answer on August 9, 2021 (ECF No. 20), which the Court granted (ECF No. 21). The Court granted Defendants until September 2, 2021 to file a responsive pleading. ECF No. 21. Defendants subsequently filed their answer on August 30, 2021 and certified that they served the answer on Plaintiff by first-class mail. ECF No. 22. Plaintiff states that as of September 8, 2021, he “has not been served with any responsive pleading from Defendants[.]” Mot. at 6-7.
Pursuant to Federal Rule of Civil Procedure 55(a), the Clerk of Court must enter a default “[w]hen a party against whom judgment for affirmative relief is sought has failed to plead or otherwise defend.” Here, entry of default is not appropriate because there has been no showing that Defendants “ha[ve] failed to plead or otherwise defend” this action. Fed.R.Civ.P. 55(a). To the contrary, Defendants timely filed an answer to Plaintiff's Complaint on August 30, 2021, and certified that they mailed a copy of the answer to Plaintiff the same day. See ECF No. 22 at 10.
Therefore, the Court DENIES Plaintiff's request for entry of default. See Langley v. Tulare Police Dep't, No. 116CV00336DADSKO, 2017 WL 633901, at *2 (E.D. Cal. Feb. 15, 2017) (denying request for entry of default where defendant had timely answered and mailed plaintiff a copy the same day); Mitchell v. Gilbert, No. C09-5080-BHS, 2010 WL 1186192, at *1 (W.D. Wash. Mar. 23, 2010) (denying request for entry of default “because all defendants filed an answer within 60 days of accepting service by mail, ” and “[t]herefore, no defendant was in default.”); see also Brinkley v. Skjonsberg, 60 F.3d 832 (9th Cir. 1995) (affirming the district court's denial of motion for default judgment against a defendant where the defendant filed an answer).
IT IS SO ORDERED