United States District Court, E.D. California
EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C § 1983. Currently pending before the court are plaintiff's motion for sanctions and a default judgment (ECF No. 139), a flurry of filings regarding whether defendants have complied with this court's order regarding plaintiff's witnesses (ECF Nos. 141, 144, 146, 149, 150), and some miscellaneous filings by plaintiff regarding discovery (ECF Nos. 151, 152).
I. Motion for Default Judgment and Sanctions
Plaintiff alleges that defendant Roszko failed to timely respond to the complaint. ECF No. 139. Defendant Roszko waived service, which was mailed February 25, 2014. ECF No. 135. Accordingly, he had 60 days from that date to respond, making his response due on or before Monday, April 28, 2014. Fed.R.Civ.P. 4(d)(3). Defendant Roszko concedes that his answer was filed late on May 7, 2014, and attributes this fact to a calendaring error. ECF No. 142. Defense counsel's secretary declares that she mistakenly calendared the date based on the day defendant Roszko signed the waiver rather than the date service was mailed. ECF No. 142-1.
Rule 55 of the Federal Rules of Civil Procedure requires the court clerk to enter default against a party who "has failed to plead or otherwise defend[.]" Thereafter, the court may enter a default judgment against such a party if the court concludes that certain factors favor entry of default judgment. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Those factors are:
(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.
Id. Here, defendant Roszko filed his answer less than two weeks late and has therefore not failed to plead or otherwise defend. Rather, defendant Roszko's answer was late due to a simple calendaring error. Even if defendant Roszko's late filing of his answer were construed as a failure to defend, the Eitel factors do not favor entry of default judgment against him. Plaintiff has shown no prejudice from the late answer, the merits of the action have yet to be evaluated, plaintiff seeks over $1 million in damages from defendant Roszko, and the answer was filed late due to defense counsel's secretary's excusable neglect. There is no compelling reason not to allow plaintiff's claim against defendant Roszko to be litigated on the merits. Accordingly, plaintiff's request for default judgment is denied.
Plaintiff also seeks sanctions against defendant Roszko under Federal Rule of Civil Procedure 11(c) for filing his answer late. ECF No. 139. That motion is denied. Rule 11 authorizes sanctions where a party has violated Rule 11(b)'s requirements regarding integrity in pleadings and motions. Plaintiff does not identify any conduct on the part of defendant Roszko or his counsel that violates Rule 11(b). Simply filing the answer late is not sanctionable conduct as defined by that rule. Fed.R.Civ.P. 11(b) (providing that, by signing a court filing, a party or attorney makes certain representations to the court regarding the integrity of the filing). Further, plaintiff's request for sanctions does not comply with Rule 11(c)(2which requires that a motion for sanctions be made separately from any other motion (plaintiff's motion additionally moves for default judgment). That rule also required plaintiff to serve the motion on defendant Roszko to provide him 21 days to withdraw the challenged filing, which plaintiff failed to do. Plaintiff's request for sanctions is therefore denied.
II. Status of Plaintiff's Communication with Witnesses
On April 23, 2014, the court ordered the California Department of Corrections and Rehabilitation (CDCR) to "allow plaintiff correspondence with inmates Dillinger and Rossignon regarding facts relevant to this suit and to solicit declarations describing those facts and whether the witnesses will voluntarily testify at trial." ECF No. 138 at 2. The court further ordered CDCR to provide plaintiff with the last known addresses of his formerly incarcerated witnesses and ordered defense counsel to meet and confer with plaintiff "to devise a workable means by which plaintiff can communicate with his formerly incarcerated witnesses to arrange for their appearance and testimony at trial." Id. at 2-3. Defense counsel responded that, in a phone call, he told plaintiff that he could obtain the last known addresses of his formerly incarcerated witnesses from the institution's litigation coordinator. ECF No. 141 at 2. Counsel declares that he also told plaintiff that he could submit interrogatories to his incarcerated witnesses to the litigation coordinator, which would be reviewed by prison officials and possibly CDCR counsel before being forwarded to the witnesses. Id. According to defense counsel, plaintiff became belligerent so counsel ended the call. Id. Nevertheless, defense counsel provided the litigation coordinator with the list of plaintiff's formerly incarcerated witnesses and asked her to provide their last known addresses to plaintiff as soon as possible. Id. He also "provided written instructions for Plaintiff to communicate with incarcerated witnesses Rossignon and Dillinger." Id.
Plaintiff disputes defense counsel's characterization of his behavior during the call and accuses defense counsel of failing to meet and confer in good faith. ECF Nos. 144, 146. Plaintiff states that defense counsel told him he would review plaintiff's communications with his incarcerated witnesses. Id. Plaintiff objects to defense counsel reviewing his communications with his incarcerated witnesses and asks the court to perform that function and then forward the communications directly to the inmates. Id.
It is unclear from these filings whether plaintiff has been given addresses for witnesses DeJarlais, Pizzarusso, and Schuknecht, who are no longer incarcerated. Plaintiff has been given an address for Rossignon, who has been paroled. ECF No. 150. Accordingly, plaintiff's motion for Rossignon's location (ECF No. 149) is denied as moot. However the parties are ordered to inform the court whether the remaining addresses have been given to plaintiff.
As for plaintiff's communications with Dillinger, the sole remaining incarcerated witness, the court's order requiring prison officials to allow such communication was premised on plaintiff's representation that he had no problem with prison officials reviewing those communications for security purposes. ECF Nos. 133 at 3; 124 at 2. The court notes, however, that the order does not authorize defense counsel or counsel for CDCR to review those communications and defendants have provided no justification to the court for such review. Accordingly, CDCR shall ...