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Cobb v. Rodriguez

United States District Court, S.D. California

April 8, 2014

JOHN COBB, Plaintiff,
v.
RAMIRO RODRIGUEZ; ALEX CALDERSON; CHIEF WILLIAM LANSDOWNE; CITY OF SAN DIEGO; and Does 1 through 10, Defendant.

ORDER: (1) DENYING REQUEST FOR ENTRY OF DEFAULT (2) DENYING PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGMENT (3) EXTENDING TIME FOR PLAINTIFF TO PROPERLY SERVE COMPLAINT (4) DENYING AS MOOT DEFENDANT'S MOTION TO DISMISS

ROGER T. BENITEZ, District Judge.

Before this Court is Plaintiff John Cobb's Motion for Entry of Default Judgment. (Docket No. 25) and Defendants' Motion to Dismiss (Docket No. 26). Plaintiff has also requested that the Clerk of the Court, enter default. (Docket No. 20). For the reasons stated below, the request for entry of default is DENIED, the Motion for Entry of Default Judgment is DENIED, and the Motion to Dismiss is DENIED AS MOOT.

BACKGROUND

Plaintiff John Cobb filed a Section 1983 complaint on June 11, 2013. On August 20, 2013, this Court granted Defendants' motion to dismiss the complaint. (Docket No. 18). This Court gave Plaintiff leave to amend his complaint, and required that "[a]ny amendment must be filed and served on the named defendants by September 30, 2013.." (Docket 18 at 3-4).

Plaintiff filed a First Amended Complaint (FAC) on September 30, 2013, along with a proof of service indicating that a copy of the FAC had been mailed to defense counsel. (Docket Nos. 19, 19-1). Plaintiff requested that the Clerk of the Court enter default on February 4, 2014. (Docket No. 20). That request was not granted because no summons returned executed had been filed. (Id.) On February 7, 2014, Plaintiff filed a proof of service, dated the same day, which indicated that (1) defense counsel had been serve on September 30, 2013, and (2) that a copy of the FAC had been mailed to the named defendants on February 7, 2014, (Docket No. 21). Plaintiff filed a Motion for Entry of Default Judgment on March 13, 2014. (Docket No. 25). Defendants filed a Motion to Dismiss the FAC on March 19, 2014. (Docket No. 26).

MOTION FOR DEFAULT JUDGMENT

Defendants filed an Opposition to the Motion for Default Judgment on March 27, 2014. (Docket No. 27). In the Opposition, Defendants contended that Plaintiff's Motion for Default Judgment should be dismissed and the case dismissed because Plaintiff failed to satisfy the procedural requirements for a default judgment, and because he has not properly served the defendants. ( Id. at 2.) Plaintiff filed a Rely on April 3, 2014. (Docket No. 28).

A. Entry of Default or Default Judgment Would Be Improper

After a full review of the briefing on the motion for default, as well as the related arguments proffered by Defendants in their Motion to Dismiss, it is apparent that the entry of default and default judgment is not appropriate. Plaintiff has not yet met the technical requirements for serving Defendants.

A plaintiff must serve defendants within 120 days of filing a complaint. See FED.R.CIV.P. 4(m). If a plaintiff fails do to so, the action must be dismissed without prejudice against the defendant, or the court must order that service be made within a specified time. Id . If the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. Id.

The notices of appearance filed in this matter stated that communication with defendants should be served upon attorneys, with the exception of "original service of process." (Docket Nos. 5, 9). Defendants also point to this Court's order stating that any amendment was required to be "served on the named defendants by September 30, 2013." To sere an individual defendant, a plaintiff must comply with Federal Rule of Civil Procedure 4(e). Service on a local government must comply with Federal Rule of Civil Procedure 4(j)(2). Plaintiff did not utilize any of the methods authorized by the Rules. Plaintiff's only attempt at service within 120 days of filing his complaint was to mail a copy of the FAC to defense counsel. As such, Plaintiff did not serve the Defendants in a timely and proper fashion

As Defendants were not properly served, entry of default and default judgment for failure to respond to the FAC is inappropriate. Plaintiff's Request for Entry of Default is DENIED. Plaintiff's Motion for Default Judgment is therefore DENIED.

B. An Extension of Time to Serve the Complaint is Merited

Plaintiff's failure to properly serve Defendants within the time limit set by Federal Rule of Civil Procedure 4(m) obligates this court to dismiss the action, order service within a specific time, or extend the time for service if good cause exists. Defendants ask ...


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