United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO: 1) DENY REQUEST FOR ENTRY OF DEFAULT 2) GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION TO STRIKE DEFENDANTS' AFFIRMATIVE DEFENSES (ECF NO. 18)
MICHAEL J. SENG, Magistrate Judge.
I. PROCEDURAL HISTORY
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 9.) The action proceeds on Plaintiff's Eight Amendment failure to protect claim against Defendants Quinonez and Lozano. (ECF Nos. 9 & 10.)
Before this Court is Plaintiff's "Motion to Strike Defendant's [sic] Answer and Affirmative Defenses to Complaint." (ECF No. 18.)
On November 17, 2014, the Court ordered service upon Defendants by the U.S. Marshals Service. (ECF No. 12.) Requests for waivers of service were sent on November 21, 2014; the court received executed waivers of service from both Defendants on December 19, 2014. (ECF No. 13.) Defendants' answer was due January 20, 2015. Defendants served and filed their answer on January 20, 2015. (ECF No. 14.) Defendants opposed the instant motion on February 11, 2015 (ECF No. 19).
A. Motion for Default
In general, "[a] summons must be served with a copy of the complaint." Fed.R.Civ.P. 4(c)(1). However, many defendants have "a duty to avoid unnecessary expenses of serving the summons." Fed.R.Civ.P. 4(d)(1). "The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons." Id . Rule 12(a)(1)(A)(ii) of the Federal Rules of Civil Procedure provides that a defendant that has timely waived service under Rule 4(d) must respond "within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States."
Rule 55(a) of the Federal Rules of Civil Procedure requires that the Clerk of the Court enter default "when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise." Rule 55(b)(2) provides that the Court may grant a default judgment after default has been entered by the Clerk of the Court.
Here, Plaintiff is not entitled to entry of default under Rule 55(a) because Defendants timely filed an answer to the complaint. (ECF No.14.) Pursuant to Rule 12, Defendants had sixty days after the request for waiver of service was sent to serve their responsive pleading. Fed.R.Civ.P. 12(a)(1)(ii). The request for waiver was sent on November 21, 2014 and Defendants timely waived service on December 16, 2014. (ECF No. 13). Defendants' answer was due on January 20, 2015,  and they served and filed the answer on that day. (ECF No. 14.) Thus, Defendants' answer was timely.
Accordingly, the court recommends that Plaintiff's motion for default be denied.
B. Motion to Strike Affirmative Defenses
Rule 12(f)(2) provides that "the court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter" on the motion of a party. "The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010).
Affirmative defenses can be challenged as a matter of pleading or as a matter of law. Harris v. Chipotle Mexican Grill, Inc., 303 F.R.D. 625, 627 (E.D. Cal. 2014). An affirmative defense fails as a matter of law if it lacks merit under any set of facts that the defendant might allege'" Id., at 628 (citing Dodson v. Strategic Restaurants Acquisition Co., 289 F.R.D. 595, 602 (E.D. Cal. 2013). Pleading insufficiency means ...