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Tripp v. Astrue

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 15, 2010

KATHY TRIPP, PLAINTIFF PRO SE,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DENYING MOTION FOR JUDGMENT

(Doc. 33)

On June 9, 2010, Plaintiff filed a motion for judgment, alleging that the Defendant did not file an answer to her complaint. (Doc. 33.) Plaintiff's motion essentially requests a default judgment against the Defendant. In general, a plaintiff is not entitled to default judgment against the Defendant under such circumstances. See Fed. R. Civ. P. 55(d) (default judgments against the Federal Government cannot be issued unless "the claimant establishes a claim or right to relief by evidence that satisfies the court"). Specifically, Plaintiff is not entitled to default judgment here because the answer is not yet due.

The Court's scheduling order directed: "Within one hundred twenty (120) days after service of the complaint, respondent shall serve a copy of the administrative record on appellant and file it with the court. The filing of the administrative record shall be deemed an answer to the complaint." (Doc. 17 ¶ 2.)

Plaintiff did not complete service until March 5, 2010. (Doc. 29.) Therefore, pursuant to the Scheduling Order, the Defendant is not required to answer Plaintiff's complaint until July 6, 2010, which is 120 days following service of the complaint. See Fed. R. Civ. P. 6(a)(1)(C). Accordingly, Plaintiff's motion for judgment is DENIED.

IT IS SO ORDERED.

20100615

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