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Roberto A. Sotelo v. T. Birring

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 23, 2013

ROBERTO A. SOTELO,
PLAINTIFF,
v.
T. BIRRING, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER DENYING STIPULATION AND REQUEST FOR ORDER TO SET ASIDE ENTRY OF DEFAULT, WITHOUT PREJUDICE (Docs. 118 and 120)

Plaintiff Roberto A. Sotelo, a state prisoner proceeding in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 10, 2008. This action is proceeding on Plaintiff's second amended complaint, filed March 22, 2012, against Defendant Green for acting with deliberate indifference to Plaintiff's medical needs, in violation of the Eighth Amendment.

On December 31, 2012, Plaintiff requested entry of default against Defendant Green and on January 3, 2013, default was entered by the Clerk of the Court. Fed. R. Civ. P. 55(a). On January 22, 2013, Plaintiff and Defendant filed a stipulation and request for the issuance of an order (1) setting aside the entry of default, (2) requiring Defendant to reimburse Plaintiff's counsel for the costs incurred in locating and serving Defendant, and (3) directing Defendant to file an answer within twenty-one days.

The Court has broad discretion to set aside default for good cause shown. Fed. R. Civ. P. 55(c); O'Connor v. State of Nevada, 27 F.3d 357, 364 (9th Cir. 1994). Here, however, no cause has been shown. The parties may not file a bare stipulation to set aside the entry of default against Defendant. Defendant is required to file a motion making the requisite showing, to which Plaintiff may file a statement of non-opposition if he chooses. Fed. R. Civ. P. 55(c); Local Rule 230.

Accordingly, the stipulation and request for an order setting aside entry of default is HEREBY DENIED, without prejudice to the filing of a motion to set aside entry of default.

IT IS SO ORDERED.

20130123

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