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Gregory Smith v. Behroz Hamkar*Fn1

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


May 23, 2012

GREGORY SMITH, PLAINTIFF,
v.
BEHROZ HAMKAR*FN1 , ET AL., DEFENDANT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's May 16, 2012 motion for default judgment against defendants Ma, Hamkar, Teachout, and Roberts-Sweeny (erroneously identified in the complaint as Sweeney). (See Dkt. No. 57 at 1, n.1.)

Plaintiff contends that, under Federal Rule of Civil Procedure Rule 12(a)(4), defendants missed their deadline to file a responsive pleading following the district court's March 31, 2012 order, which denied defendants' motion to dismiss as to certain claims against Hamkar, Teachout, and Ma. (Dkt. No. 55.)

This argument is meritless. Rule 12(a)(4) provides a deadline to file a responsive pleading "[u]nless the court sets a different time[.]" On April 13, 2012, the court ordered defendants to file an answer to the remaining claims within 14 days of the filed date of that order. (Dkt. No. 56.) Defendants filed their answer on April 25, 2012. (Dkt. No. 57.) Thus the answer is timely and no default judgment is warranted.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's May 16, 2012 motion for default judgment (Dkt. No. 59) is denied; and

2. The Clerk of Court shall amend the docket to change defendant "Debra Sweeney" to "Debra Roberts-Sweeny" and to note that defendant Nangalama was dismissed from this action on March 31, 2012.


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