Opinion
NO. 5:10-CV-221 (MTT).
September 17, 2010
PROCEEDINGS UNDER 42 U.S.C. § 1983
ORDER
Before the court is plaintiff Jessie Sebastian's motion seeking default judgment. Tab #23. Therein, plaintiff Sebastian avers that defendants Mike Maynard, Joe Vice and Larry Waller failed to timely file an answer or motion pursuant the provision of Rule 12 of the Federal Rules of Civil Procedure. The plaintiff is mistaken.
The defendants are not in default. The record in this case indicates that all defendants waived service on August 11, 2010. Tab #11, Tab #12, and Tab #14. As set forth in each WAIVER OF SERVICE OF SUMMONS, the defendants had sixty (60) days from July 14, 2010 in which to file an answer or motion under Rule 12 of the Federal Rules of Civil Procedure. Because the sixtieth day fell on Sunday, September 12, 2010, the defendants had until Monday, September 13, 2010 to answer or file a Rule 12 motion. Further examination of the docket reveals that, prior to this date, motions seeking dismissal were filed on behalf of all defendants. See Tab #17 and Tab #19. Accordingly, the plaintiff's motion seeking entry of default is DENIED.
SO ORDERED.