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Thomas Nguyen v. Kathryn Alban; San Diego Police Department; Officer Serena Mcfalls

March 14, 2012

THOMAS NGUYEN,
PLAINTIFF,
v.
KATHRYN ALBAN; SAN DIEGO POLICE DEPARTMENT; OFFICER SERENA MCFALLS; OFFICER LOPEZ; OFFICER VALDEZ; OFFICER MICHAEL MORAN, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matters before the Court are the Motion to Dismiss filed by Defendant Kathryn Alban*fn1 (ECF No. 6) and the Request to Enter Default against Defendant Alban filed by Plaintiff Thomas Nguyen (ECF No. 15).

I. Background

On September 22, 2011, Plaintiff initiated this action by filing a Complaint in the Superior Court of California for the County of San Diego. (ECF No. 1 at 6). On November 7, 2011, Defendants removed the matter to this Court asserting that this Court has original federal question jurisdiction. (ECF No. 1 at 2). On November 14, 2011, Defendants San Diego Police Department, Officer Serena McFalls, Officer Eduardo Lopez, Officer David Valdez, and Officer Michael Moran filed an Answer. (ECF No. 2).

On November 21, 2011, Plaintiff filed an Opposition to the Notice of Removal. (ECF No. 5 at 2). On December 2, 2011, Defendants filed a Reply. (ECF No. 9).

On November 22, 2011, Defendant Kathryn Alban filed a Motion to Dismiss the Complaint. (ECF No. 6). On December 12, 2011, Plaintiff filed an Opposition. (ECF No. 13). Plaintiff also filed a Request to Enter Default against Defendant Alban. (ECF No. 15). On December 19, 2011, Defendant Alban filed a Reply. (ECF No. 17).

II. Entry of Default

Plaintiff seeks entry of default judgment against Defendant Alban on the grounds that she did not respond to the Complaint within 30 days from the date of service. Plaintiff contends that the Complaint, filed in the California Superior Court, was served on October 11, 2011. Plaintiff contends that Defendant Alban did not file her Motion to Dismiss until November 22, 2011. Plaintiff has submitted a copy of the "Register of Action" from the California Superior Court identifying each entry on the docket for this case. (ECF No. 5 at 4). The Register of Action reflects that, on November 16, 2011, a "Notice of Removal to Federal Court" was filed. Id.

Defendant Alban contends that on October 17, 2011 she was served with the Complaint. Defendant Alban contends that on November 15, 2011, the other Defendants filed a notice of removal and that, pursuant to Federal Rule of Civil Procedure 81(c), she was required to file her motion to dismiss no later than seven days after the notice of removal was filed. Defendant Alban contends that her motion to dismiss, filed on November 22, 2011, is timely.

Federal Rule of Civil Procedure 81 provides that, after removal to federal court, a defendant who has not answered before removal "must answer or present other defenses or objections under these rules" within the following periods, whichever is longer:

(A) 21 days after receiving--through service or otherwise--a copy of the initial pleading stating the claim for relief;

(B) 21 days after being served with the summons for an initial pleading on file at the time of service; or

(C) 7 days after the notice of ...


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