Opinion
No. CV-18-02351-PHX-DGC (BSB)
03-13-2019
James William Gates, Petitioner, v. Charles L Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
Petitioner brings this action pursuant to 28 U.S.C. § 2254. (Doc. 1.) On September 24, 2018, the Court ordered Respondents to file an answer to the Petition for Writ of Habeas Corpus ("Petition") within forty days of the date of service. (Doc. 6 at 6.) Respondents filed an untimely answer on November 11, 2018. (Doc. 13.) That same day, Petitioner filed a "motion for summary judgment" because he had not yet received Respondents' answer to the Petition. (Doc. 14.) The Court construes Petitioner's motion as a motion for entry of default and for default judgment and recommends that it be denied.
Federal Rule of Civil Procedure 55(a) provides that: "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." After default has been entered, the court considers whether to enter default judgment. See Fed. R. Civ. P. 55(b). Respondents have filed a response to the Petition. (Doc. 13.) Respondents admit that the response was untimely. (Docs. 13, 15.) Respondents explain that the untimely filing was due to excusable neglect involving counsel's failure to communicate with staff regarding when to file the response. (Doc. 15 at 1.) The Court finds that Respondents have sufficiently explained and shown cause for their untimely filing and will consider their response to the Petition. Because Respondents have filed a response to the Petition, there is no basis to enter default or default judgment. The Court notes that Petitioner has filed a reply in support of the Petition. (Doc. 16.)
Accordingly,
IT IS RECOMMENED that Petitioner's motion for summary judgment (Doc. 14), construed as a motion for entry of default and for default judgment, be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
Dated this 13th day of March, 2019.
/s/_________
Bridget S. Bade
United States Magistrate Judge