The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Plaintiff, proceeding in pro per, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is Plaintiff's motion for default judgment (Doc. 19). Plaintiff is requesting a default judgment be entered against the defendants for failure to file a timely answer to the complaint.
A defendant is not in "default" unless he "has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise." Fed. R. Civ. Proc. 55(a). A party generally has 20 after being served with the summons and complaint to file a responsive pleading. See Fed. R. Civ. Proc. 12(a). However, if the party has timely waived service under Rule 4(d), a responsive pleading is timely if filed within 60 days after the request for a waiver was sent. See id.
Plaintiff has been granted leave to proceed in this action in forma pauperis. He therefore was allowed, by court order, to have the United States Marshal serve the defendants without pre-payment of costs. He was required to complete the service documents and submit them directly to the U.S. Marshal. Plaintiff informed the court on May 27, 2009, that he submitted his service documents to the U.S. Marshal for service. Pursuant to court order, the U.S. Marshal sent the waiver of service of summons to the defendants on July 28, 2009.
See Fed. R. Civ. Proc. 4(c). The waivers of service were returned to the court executed on August 19, 2009, indicating successful service. Accordingly, the defendants have 60 days from July 28, 2009, to file a responsive pleading to the complaint. See Fed. R. Civ. Proc. 4, 12.
Contrary to Plaintiff's contention that the defendants were "notified on Jan. 1, 2009 by U.S. mail of [the] complaint," service of the complaint on the defendants was not accomplished until July 28, 2009. The defendants are not currently in default as the time for filing their responsive pleading has not expired. As such, entering a default judgment is not appropriate at this time.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for default judgment (Doc. 19) is denied.
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