The opinion of the court was delivered by: M. James LorenzUnited States District Court Judge
ORDER GRANTING CLAIMANT'S MOTION TO SET ASIDE DEFAULT [doc. #18]
On January 5, 2011, Merrill Dennis Harvey, Jr., appearing pro se, filed a verified claim in this forfeiture action and a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Plaintiff United States opposed the motion and Harvey did not file a reply to plaintiff's opposition. The Court considered the motion on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1). On June 2, 2011, the Court denied Harvey's motion to dismiss the complaint and ordered Harvey to file an answer within 21 days of the filing of the Order. [doc. # 14]
Harvey failed to file an answer. The United States therefore requested and was granted entry of default on July 13, 2011. [doc. #16]. Plaintiff's motion for default judgment was filed on July 18, 2011 and a hearing date was set for September 6, 2011. [doc. #17]
On August 11, 2011, the Clerk of the Court received a document from Harvey entitled "DECLARATION OF AND REQUEST FOR CLERK'S ENTRY OF DEFAULT AS TO (ALLEGED) PLAINTIFF'S CLAIM AS THE (ALLEGED) PLAINTIFF HAS, inter alia, FAILED TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED." Claimant Harvey's filing appeared to be an opposition to plaintiff's motion for default judgment: "Claimant is writing this as a rebuttal to the "Declaration" of one Michael P. Running, Jr. filed (to the best of Claimant's knowledge) on 7.12.11." (Harvey Declaration at 1.) In the filing, Harvey stated, under penalty of perjury: "Claimant received a waiver of Oral's from the AUSA's office dated 1.24.11" . . . "Claimant received NO further communication, no court date, no dismissal, and NO "Order" as Mr. Running alleges in paragraph 6." (Harvey Declaration at
The Court construed claimant Harvey's filing as a motion to set aside default and ordered plaintiff United States to file a response to claimant's motion to set aside default on or before August 29, 2011. See Order filed August 19, 2011. [doc. #19]
In response to Harvey's filing, the United States noted that it was unable to dispute his allegation that he did not receive the Court's June 2, 2011 Order directing him to file an answer within 21 days of the filing of that Order. (Response at 2.) The United States therefore acknowledges that the Clerk's Entry of Default as to Claimant should be set aside but requests that entry of default as to all other potential claimants should not be set aside as no other individuals have filed a verified claim or answer in this matter. (Id.) The Court concurs.
Based on the foregoing, claimant Harvey's motion to set aside default is GRANTED. The entry of default as to all other potential claimants shall remain in effect.
COPY TO: HON. JAN M. ADLER UNITED STATES MAGISTRATE JUDGE ALL PARTIES/COUNSEL MERRILL DENNIS HARVEY, JR. #17246-298, Unit A4B TAFT CORRECTIONAL INSTITUTION P.O. BOX 7110 TAFT, CA 93268-7001
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