The opinion of the court was delivered by: Gary S.Austin United States Magistrate Judge
ORDER DENYING PLAINTIFF'S REQUESTS FOR ENTRY OF DEFAULT AND PLAINTIFF'S MOTIONS TO SCHEDULE HEARING (Docs. 50, 51, 56, 59, 63, 65, 75, 77.)
Norris Lee ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action now proceeds with the Second Amended Complaint filed by Plaintiff on March 23, 2010, against defendants Correctional Officers M. Garcia*fn1 , E. Hough, and M. White ("Defendants"), for failure to protect Plaintiff in violation of the Eighth Amendment.*fn2
(Doc. 36.) On November 8, 2010 and November 22, 2010, Plaintiff filed requests for entry of default against all of the Defendants. (Doc. 50, 51.) On December 13, 2010, defendant White filed an Answer to the Complaint. (Doc. 52.) On December 23, 2010, Plaintiff filed another request for entry of default against all of the Defendants. (Doc. 56.) On December 29, 2010, defendant White filed an opposition to Plaintiff's request for entry of default. (Doc. 57.) On January 18, 2011, Plaintiff filed a reply to the opposition. (Doc. 60.) On March 3, 2011, defendant Hough filed an Answer to the Complaint. (Doc. 66.) Plaintiff has also filed numerous motions for the Court to schedule a hearing to assess the amount of damages due to Plaintiff. (Docs. 59, 63, 65, 75, 77.) Defendants have opposed these motions. (Docs. 61, 72, 79, 81.) On May 9, 2011, the United States Marshal filed a return of service unexecuted as to defendant Garcia. (Doc. 84.)
Plaintiff's requests for entry of default and motions to schedule a hearing are now before the Court.
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 failure is shown 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 21 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 default should be entered against all of the Defendants because they were served with a summons and copy of the complaint, and they failed to file an answer within twenty-one days. Plaintiff asserts that the summons was served on Defendants on September 22, 2010; that the summons indicated that Defendants had 21 days to answer the Second Amended Complaint; and that Defendants failed to serve a copy of an answer or other defense within the 21-day deadline. Plaintiff argues that defendant White's answer filed on December 13, 2010 was filed after the 21-day deadline. Further, Plaintiff asserts that defendant White inappropriately sent Plaintiff discovery requests while the requests for default were pending.
In opposition, defendants White and Hough argue that default should not be entered against any of the Defendants, because defendants White and Hough have both filed Answers, and Plaintiff presents no evidence that defendant Garcia has been served or waived service.
Defendant White argues that default should not be entered against him based on Plaintiff's first request for entry of default, because the request was filed nearly a month before defendant White's Answer was due. Defendant White asserts that because he signed a Waiver of Service which was sent to him on October 5, 2010, his Answer was not due until December 4, 2010, but Plaintiff filed the first request for entry of default on November 8, 2010. (Docs 50, 58.) Further, defendant White asserts that his Counsel (Counsel for defendants White and Hough ("Counsel")) was unable to file a timely answer on his behalf, because Counsel was not timely informed that White had been served in this action. Defendant White presents evidence that on December 13, 2010, Counsel contacted the litigation coordinator at Corcoran State Prison ("CSP") and learned that defendant White had been served in this action and had completed a request for representation. (Declaration of Matthew Ross ("Ross Decl."), Doc. 72-1 at ¶3.) Counsel then filed a responsive pleading on behalf of defendant White that same day. (Id.)
Defendant Hough argues that default should not be entered against him because Counsel was unable to file a timely answer on his behalf. According to the Waiver of Service signed by defendant Hough, defendant Hough's answer was due on February 28, 2011. (Doc. 67.) On March 2, 2011, after receiving notice of Plaintiff's February 28, 2011 motion concerning default, Counsel contacted the litigation coordinator at CSP, and on March 3, 2011, Counsel learned that defendant Hough had been served, and that a Waiver of Service dated December 30, 2010 had been received by the litigation coordinator. (Ross Decl. at ¶¶4-6.) Counsel was informed that the case documents had been sent to the Attorney General's office on January 31, 2011. (Id. at ¶6.) However, the documents had not been forwarded to Counsel's office as of March 3, 2010. (Id.) Counsel immediately prepared and filed an answer on behalf of defendant Hough on March 3, 2010. (Id. at ¶7; see Court Doc. 66.)
With respect to defendant Garcia, Defendants argue [on March 5, 2011] that default should not be entered against him because Plaintiff has presented no evidence that defendant Garcia has been served, and the court's docket [as of March 5, 2011] does not indicate that any Waiver of Service for Garcia has ...