United States District Court, S.D. California
REPORT AND RECOMMENDATION GRANTING MOTION FOR DEFAULT
[ECF NO. 44]
Ruben B. Brooks United States Magistrate Judge.
January 5, 2017, Counterclaimants City of San Diego and John
Sullivan (the “Counterclaimants”) filed a
“Request for Entry of Default of Counter-Defendant
Rafael Flores as to Any and All Counterclaims Asserted by
Counterclaimants City of San Diego and Officer John
Sullivan” (the “Motion for Default”) [ECF
No. 44]. No opposition to or reply in support of the Motion
for Default was filed. For the reasons discussed below, the
Motion for Default [ECF No. 44] should be GRANTED, and the
Clerk of Court should enter a default against Plaintiff as to
Rafael Flores filed his lawsuit against several Defendants on
September 10, 2015 [ECF No. 1]. On November 25, 2015, the
Defendants filed a Motion to Dismiss or for a More Definite
Statement [ECF No. 16]. The Court issued a Report and
Recommendation granting in part and denying in part
Defendants' motion [ECF No. 29], which was adopted by
United States District Court Judge Anthony J. Battaglia on
August 22, 2016 [ECF No. 31]. On October 24, 2016, Defendants
filed a document entitled, “Defendants' Answer to
Plaintiff's Complaint Under the Civil Rights Act 42
U.S.C. § 1983; Counterclaims of Counterclaimant City of
San Diego and Officer Sullivan; and Attached Exhibit A”
(the “Counterclaims”) [ECF No. 32]. In this
filing, Counterclaimants City of San Diego and John Sullivan
pleaded claims against Flores for negligent resisting arrest
and assault and battery. (Defs.' Answer Pl.'s Compl.
& Countercls. 14-15, Oct. 24, 2016, ECF No.
They seek damages and other relief in connection with these
claims. (Id. at 15-16.)
Counterclaims were served on Plaintiff four separate times.
First, they were mailed to Flores on October 24, 2016.
(See id. Attach. #2 Certificate Serv. 2-3, Oct. 24,
2016.) This pleading was again mailed to Plaintiff on
November 17, 2016. (Certificate Serv. 2-3, Nov. 17, 2016, ECF
No. 36.) The Counterclaims were then personally served on
Flores while he was appearing in San Diego Superior Court on
November 30, 2016. (Certificate Serv. 2-3, Nov. 30, 2016, ECF
No. 37.) Plaintiff was again served by mail on December 7,
2016. (Certificate Serv. 3-4, Jan. 5, 2017, ECF No. 43.)
Flores did not file a responsive pleading to the
Counterclaims. On January 5, 2017, the Counterclaimants filed
the Motion for Default [ECF No. 44].
Federal Rules of Civil Procedure provide, “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, the clerk must enter the
party's default.” Fed.R.Civ.P. 55(a). In most
cases, however, a default does not automatically entitle a
party to a default judgment. See 10 James Wm. Moore,
et al., Moore's Federal Practice §
55.10, at 55-14 (3d ed. 2017) (footnotes omitted)
(“Rule 55 requires a two-step process. The first step,
entry of default, is a ministerial matter performed by the
clerk and is a prerequisite to a later default
judgment.”). The clerk of the court must enter a
default judgment “[i]f the plaintiff's claim is for
a sum certain or a sum that can be made certain by
computation.” Fed.R.Civ.P. 55(b)(1). “In all
other cases, the party must apply to the court for a default
judgment.” Id. (b)(2)
“[i]f a defendant fails to respond to a complaint,
default judgment may be entered on behalf of the
plaintiff.” Fed. Mar. Comm'n v. S.C. State
Ports Auth., 535 U.S. 743, 757 (2002) (citation omitted)
(discussing the Federal Maritime Commission Rules of Practice
and noting the similarity to the Federal Rules of Civil
Procedure). Service of process must be properly completed
before a default judgment may be entered. Jacobs v.
Tenney, 316 F.Supp. 151, 165-66 (D. Del. 1970). But
“default judgments are ordinarily disfavored.”
Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir.
1986). “Cases should be decided upon their merits
whenever reasonably possible.” Id. (citing
Pena v. Seguros La Comercial, S.A., 770 F.2d 811,
814 (9th Cir. 1985)).
their Motion for Default, Counterclaimants contend that
Plaintiff failed to defend the claims against him within the
time required by the Federal Rules of Civil Procedure. (Mot.
Default 2, ECF No. 44 (citations omitted).) They served the
Counterclaims on Flores both personally and by mail. (See
id. at 3 (citations omitted).) The Counterclaimants
further state that in a telephone conversation with defense
counsel on December 7, 2016, Plaintiff acknowledged that he
had been served with the Counterclaims and that he was
required to respond by December 21, 2016. (Id. at
3-4 (citations omitted).) The contents of this phone conversation
were memorialized in a letter sent to Flores the same day.
(Id. at 4 (citations omitted).) Counterclaimants
indicate, however, that Flores failed to respond to the
claims against him by December 21, 2016. (Id. at 5.)
As a result, they ask that a default be entered against
Plaintiff “for failure to timely plead or otherwise
defend against the Counterclaimants'
Rule of Civil Procedure 12(a)(1)(B) states that “[a]
party must serve an answer to a counterclaim or crossclaim
within 21 days after being served with the pleading that
states the counterclaim or crossclaim.” Fed.R.Civ.P.
12(a)(1)(B). Flores was properly served with the
Counterclaims on four separate occasions [ECF Nos. 32, 36,
37, 43]. Even if the Court were to use December 7, 2016, the
last date Plaintiff was served, as the date of service, his
deadline to respond to the Counterclaims was January 3, 2017.
See Fed.R.Civ.P. 12(a)(1)(B); see also
Fed.R.Civ.P. 6(d) (“When a party may or must act within
a specified time after being served and service is made under
Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F)
(other means consented to), 3 days are added after the period
would otherwise expire under Rule 6(a).”).
has not filed any response to the Counterclaims. Nor has he
made an appearance in this case since filing a notice of
change of address on August 18, 2016 [ECF No. 30]. Because
Plaintiff did not respond to the Counterclaims by the
deadline set forth by the federal rules, a default should be
entered against him. See Cook v. Olathe Med. Ctr.,
Inc., Civil Action No. 10-2133-KHV, 2011 WL 1403176, at
*1 (D. Kan. Apr. 13, 2011) (internal citation omitted)
(“Pursuant to Rule 12(a)(1)(B), plaintiff had 21 days,
or until February 1, 2011, to file an answer or otherwise
respond to the counterclaim. Plaintiff did not do so. Because
plaintiff has failed to plead or otherwise defend the
counterclaim, [defendant] is entitled to an entry of default
under Rule 55(a).”).
result, the Motion for Default [ECF No. 44] should be
GRANTED, and the Clerk of Court should enter a default
against Flores as to the Counterclaims.