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Fresquez v. Moerdyk

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


September 27, 2010

LOUIS RICHARD FRESQUEZ, PLAINTIFF,
v.
MOERDYK, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DISCHARGING ORDER TO SHOW CAUSE

(Doc. 59.)

ORDER GRANTING REQUEST FOR ENTRY OF DEFAULT AGAINST DEFENDANT MOERDYK (Doc. 61.)

ORDER FOR CLERK TO ENTER DEFAULT AGAINST DEFENDANT MOERDYK

I. BACKGROUND

Louis Richard Fresquez ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action alleging prison officials violated the Americans with Disabilities Act ("ADA") and the Rehabilitation Act ("RA"). Plaintiff filed this action on March 11, 2003 in the Northern District of California. This action now proceeds with Plaintiff's amended complaint filed March 18, 2003, on Plaintiff's ADA and RA claims against Correctional Officer J. R. Mata and Lieutenant Pieter L. Moerdyk, on Plaintiff's ADA and RA claims concerning conditions of confinement.

On August 23, 2010, the Court issued an order requiring Plaintiff to show cause why defendant Moerdyk should not be dismissed from this action based on Plaintiff's failure to prosecute against him. (Doc. 59.) On September 24, 2010, Plaintiff filed a response to the Court's order, requesting that default be entered against defendant Moerdyk. (Doc. 61.)

II. Request for Entry of Default

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 fact is made to appear by affidavit or otherwise. See Fed. R. Civ. P. 55(a). Rule 12 of the Federal Rules of Civil Procedure provides, "[A] defendant must serve an answer within 20 days after being served with the summons and complaint; or if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent." Fed. R. Civ. P. 12(a)(1)(A). Under Rule 4(d), a defendant may waive service of a summons by signing and returning a waiver of service. Fed R. Civ. P. 4(d).

Plaintiff argues that he is entitled to entry of default against defendant Moerdyk because defendant Moerdyk was served with process and has not timely answered the complaint.

On April 27, 2010, the Court issued an order directing the United States Marshal to serve process in this action upon Defendants Mata and Moeroyk. (Doc. 52.) On June 16, 2010, a Waiver of Service signed by Defendant Pieter L. Moerdyk*fn1 on May 7, 2010 was filed with the Court, giving Defendant Moerdyk sixty days from May 5, 2010, in which to file an answer or motion under Rule 12 in response to Plaintiff's complaint.*fn2 (Doc. 58.) More than one hundred twenty days have passed, and Defendant Moerdyk has not filed an answer, a motion under Rule 12, or any other response to Plaintiff's complaint. (See Court Docket.) Therefore, Plaintiff is entitled to entry of default against defendant Moerdyk.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's request for entry of default against defendant Moerdyk is GRANTED; and

2. The Clerk is directed to enter default against defendant Pieter L. Moerdyk.

IT IS SO ORDERED.


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