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Avery v. Walker

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 1, 2009

KYLE AVERY, PLAINTIFF,
v.
JAMES WALKER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Defendants have filed a motion to dismiss (Doc. 30) along with a request to stay discovery pending a ruling on that motion (Doc. 31). Plaintiff has filed a document entitled "Omnibus Motion to the Court by Plaintiff" (Doc. 29).

Good cause appearing therefor, the court finds it appropriate to grant defendants' request to stay discovery pending a ruling on their motion to dismiss. The scheduling order issued on July 21, 2009, after defendants filed an answer to the complaint will be vacated. A new scheduling order will be issued, if appropriate, following resolution of defendants' motion to dismiss.

As to plaintiff's "omnibus" motion, plaintiff first challenges the court's August 7, 2009, order striking an improperly filed discovery request. Plaintiff says this order was unnecessary because he was only providing the court with courtesy copies of his discovery request served on defendant. Plaintiff states that the court should "eliminate the confusion that [the] order could cause by establishing with all parties that the denial was based on misunderstanding the nature of being served the courtesy copies to avoid giving the defense the idea that providing the said productions request was denied by the court meaning they don't need to comply with the production of documents request at all." The court observes that defendants have asked the court for an extension of time to respond to plaintiff's discovery (see Doc. 31). Therefore, defendants were not placed under any misconception by the August 7, 2009, order. To the extent plaintiff seeks reconsideration of that order, the request will be denied.

Plaintiff also challenges the court's order regarding his request to enter defendants' default. On July 21, 2009 -- after defendants had filed their answer -- plaintiff sought entry of default by the Clerk of the Court. The Clerk of the Court correctly declined to enter default because an answer had been filed and, on August 7, 2009, the court denied plaintiff's request to vacate this determination. Plaintiff's current motion is his second request for the court to vacate the determination by the Clerk of the Court that default should not be entered. Plaintiff argues that defendants' answer was not timely because it was not filed within the 20-day period permitted under Federal Rule of Civil Procedure 12(b). Plaintiff's reading of the rules is in error. In this case, defendants waived service on June 17, 2009. Under Federal Rule of Civil Procedure 12(a)(1)(A)(ii), when a party waives service, the responsive pleading is due within 60 days of the date of waiver. Defendants' July 16, 2009, answer was timely filed within the 60-day time period.

Accordingly, IT IS HEREBY ORDERED that:

1. Defendants request (Doc. 31) is granted;

2. The court's July 21, 2009, scheduling order is vacated; and

3. Plaintiff's "Omnibus Motion to the Court by Plaintiff" (Doc. 29) is denied.

20091001

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