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Cranford v. Perryman

United States District Court, Ninth Circuit

January 17, 2014

ARCHIE CRANFORD, Plaintiff,
v.
SAMANTHA PERRYMAN, et al., Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (Doc. 9.)

GARY S. AUSTIN, Magistrate Judge.

I. BACKGROUND

Archie Cranford ("Plaintiff") is a civil detainee proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 5, 2013. (Doc. 1.) On August 9, 2013, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (Doc. 8.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

On January 16, 2014, Plaintiff filed a motion for default judgment against all of the defendants to this action. (Doc. 9)

II. ENTRY OF DEFAULT AND DEFAULT JUDGMENT

Plaintiff argues that default judgment should be entered against all of the defendants, because they have not responded to the Complaint, and "well over 20 days have passed since the date of service." (Motion, Doc. 9 at 2:9-10.)

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). If a defendant fails to plead or otherwise defend an action after being properly served with a summons and complaint, a default judgment may be entered pursuant to Rule 55(a) of the Federal Rules of Civil Procedure.

Discussion

Court records do not reflect Plaintiff's assertion that the defendants have been served with process in this case. (Court Record.) In fact, service of process has not yet been initiated. To date, the court has not directed the United States Marshal to serve the defendants in this action. (Id.)

The court will, sua sponte, direct the United States Marshal to serve the complaint only after the court has screened the Complaint and determined that it contains cognizable claims for relief against the named defendants. Plaintiff's Complaint presently awaits the court's requisite screening. 28 U.S.C. § 1915A. Plaintiff will be notified when the Complaint is screened and the Marshal proceeds with process. Based on these facts, Plaintiff's motion for default judgment is premature and must be denied.

III. CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion for default judgment, filed on January 16, 2014, is DENIED.

IT IS SO ORDERED.


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