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Walter L. Pearson v. Duke

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


December 13, 2010

WALTER L. PEARSON,
PLAINTIFF,
v.
DUKE, ET AL., DEFENDANT(S).

The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DENYING MOTION FOR EXTENSION OF TIME AS MOOT and DENYING MOTION TO VACATE JUDGMENT

(ECF Nos. 56 & 57)

Plaintiff is a state prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. Section 1983. The Court previously ordered the Clerk to enter default against Defendant Jones based on her failure to appear and defend against this action. The Court informed Plaintiff that once default had been entered, the burden shifted back to him to file a motion for default judgment. The Court did not, however, set a deadline for Plaintiff to do so. (ECF No. 53.)

On December 2, 2010, Plaintiff filed a Motion for 30-Day Extension of Time to respond to upcoming deadlines. (ECF No. 56.) Because Plaintiff does not have any deadlines pending, Plaintiff's Motion is considered premature and is DENIED as moot.

On December 1, 2010, the Court received a document from Defendant Jones entitled "Notice of Motion to Vacate (Cancel) Judgment." (ECF No. 57.) This document appears to be a form issued by the California State Court system in small claims cases. As this is a federal court, the submitted form is meaningless. Even were the Court to accept the form, judgment has not yet been entered against Defendant Jones so there is no judgment to vacate or cancel. For these reasons, Defendant's Motion to Vacate is DENIED.

The Court notes that default has been entered against Defendant Jones pursuant to Federal Rule of Civil Procedure 55(a). If Defendant Jones wishes to move to set aside the entry of default, she is advised to consult Federal Rule of Civil Procedure 55(c).

For the reasons set forth above, it is hereby ORDERED that:

1. Defendant Jones's Notice of Motion to Vacate (Cancel) Judgment is DENIED;

2. Plaintiff's Motion for Extension is DENIED as moot; and 3. As Defendant Jones is currently proceeding pro se in this action, the Clerk shall serve a copy of this order on her last known address. The Clerk shall also change the docket to reflect Jones's pro se status.

IT IS SO ORDERED.

ci4d6

20101213

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