Opinion
1:21-cv-00628-HBK
09-29-2021
IVAN VON STAICH, Petitioner, v. U.S. PAROLE COMMISSION, Respondent.
ORDER DENYING PETITIONER'S MOTION FOR DEFAULT (DOC. NO. 10) ORDER DIRECTING PETITIONER TO FILE RESPONSE TO RESPONDENT'S MOTION TO DISMISS (DOC. NO. 15) FOURTEEN-DAY DEADLINE
HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE.
Petitioner Ivan Von Staich initiated this action by filing a pro se petition for writ of mandamus under 28 U.S.C. § 1651. (Doc. No. 1). On April 16, 2021, the Court ordered Respondent to respond to the petition and directed the Clerk of Court to serve this order on the U.S. Attorney for the Eastern District of California and the U.S. Parole Commissioner. (Doc. No. 7). Inadvertently, neither of these entities were properly served. On July 26, 2021, in light of the fact that Respondent had not yet responded to the petition, Petitioner moved for default. (Doc. No. 10). On July 27, 2021, the Court served Respondent at the proper address. (See Doc. No. 12 at 2, 12-1 at 2-7). On August 2, 2021, Respondent moved for and was granted a 45-day extension of time to respond to the petition, a Court order, and Petitioner's motion for default. (Doc. No. 12, 13). On September 16, 2021, Respondent timely responded to the petition, Court order, and Petitioner's motion for default. (Doc. No. 15). Respondent seeks dismissal of the petition. (Id.).
Entry of default is appropriate as to any party against whom a judgment for affirmative relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P. 55(a). Here, Respondent was not initially properly served. After proper service, Respondent responded in a timely manner. Therefore, Respondent has not failed to plead or otherwise defend in this action. Accordingly, Petitioner's motion for default is denied. The Court will afford Petitioner an opportunity to respond to Respondent's motion to dismiss the petition.
Accordingly, it is ORDERED:
1. Petitioner's motion for default (Doc. No. 10) is DENIED.
2. Petitioner may file a response, if any, to Respondent's motion to dismiss (Doc. No. 15) within fourteen (14) days of receipt of this Order, after which time the Court will deem the motion ripe for review.