Opinion
CASE NO. 3:18-cv-05093-BHS-DWC
10-30-2018
DENNIS STEVEN RAY PARKER, Plaintiff, v. DANIEL WHITE, Defendant.
REPORT AND RECOMMENDATION Noting Date: November 16, 2018
The District Court has referred this action, filed pursuant to 42 U.S.C. § 1983, to United States Magistrate Judge David W. Christel. Pending before the Court is Plaintiff Dennis Steven Ray Parker's Motion for Default Judgment ("Motion") (Dkt. 42).
"When 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." Fed. R. Civ. P. 55(a). Under Local Rule 55(a), upon motion by a party supported by an affidavit, "the clerk shall enter the default of any party against whom a judgment for affirmative relief is sought but has failed to plead or otherwise defend."
Here, Plaintiff appears to request default "due to Incomplete Answers of the First Set of Plaintiff's Interrogatories." Dkt. 42, p. 1. However, Defendants have filed a Motion to Dismiss, and thus they have not failed to respond or otherwise defendant against Plaintiff's allegations. Dkt. 25; Fed. R. Civ. P. 55(a). Further, Plaintiff has not explained how the failure to respond to Plaintiff's interrogatories warrants the extreme remedy of entering default judgment in Plaintiff's favor. See Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986) ("Our starting point is the general rule that default judgments are ordinarily disfavored"). In addition, Plaintiff has included a copy of the responses Defendants sent Plaintiff in response to his interrogatories. Dkt. 42, pp. 4-30. In their response to the interrogatories, Defendants did not answer all of Plaintiff's questions, but instead included several objections. See, e.g., id. at 25 (objecting to interrogatory no. 1 because it is outside the scope of the discovery the Court provided). A party is only required to answer an interrogatory to the extent it is not objected to. Fed. R. Civ. P. 33(b)(3). Thus, Defendants' response to Plaintiff's interrogatories is sufficient for the limited purpose of identifying Plaintiff's John Doe Defendants.
Therefore, the Court finds Defendants have adequately responded, both to Plaintiff's Complaint and to Plaintiff's Interrogatories, and so default is inappropriate. Accordingly, the Court recommends Plaintiff's Motion for Default (Dkt. 42) be denied.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the clerk is directed to set the matter for consideration on November 16, 2018, as noted in the caption.
Dated this 30th day of October, 2018.
/s/_________
David W. Christel
United States Magistrate Judge