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Hausken v. Lewis

United States District Court, W.D. Washington, Tacoma

September 16, 2014

PHILLIP BURTON HAUSKEN, Plaintiff,
v.
D LEWIS, et al., Defendants.

ORDER SETTING ASIDE DEFAULT AND ENTERING A SCHEDULING ORDER

J. RICHARD CREATURA, Magistrate Judge.

The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States Magistrate Judge J. Richard Creatura. The Court's authority for the referral is 28 U.S.C. § 636(b)(1)(A) and (B), and Magistrate Judge Rules MJR3 and MJR4.

Defendants ask the Court to set aside the default that the District Court entered on May 12, 2014 (Dkt. 70). The Court grants the motion because defendants show good cause for setting aside the default and show a meritorious defense to injunctive relief (Dkt. 70, p. 3). The Court previously found that defendants have qualified immunity from damages (Dkt. 60).

The first issue the Court addresses is the authority of the Court to grant this motion without issuing a Report and Recommendation. 28 U.S.C. 636 (b)(1)(A) states:

(b)(1) Notwithstanding any provision of law to the contrary-
(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.

Although default is dispositive, the motion is not a matter enumerated as requiring a Report and Recommendation. See 28 U.S.C. 636 (b)(1)(A). Accordingly, this Court has authority to decide defendants' motion.

The factors the Court considers are whether or not culpable conduct led to the default, whether or not defendants have a meritorious defense, and prejudice to plaintiff. Franchise Holding II. LLC v. Huntington Restaurant Groups, Inc., 375 F.3d 922, 925-26 (9th Cir. 2004). A Court may set aside default if any of the factors are true. American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108 (9th Cir.2000).

Plaintiff opposes setting aside the default in this case and argues that he needs the $66 he received in sanctions (Dkt. 71). Plaintiff does not address setting aside the default. Defendants argue that plaintiff has access to cable television and has had access except when his own behavior prevented him from having television privileges (Dkt. 70 pp. 3-4). Thus, this case may no longer present a case and controversy. In order to seek any form of injunctive relief plaintiff must show a threat of irreparable injury that is real and immediate, not conjectural or speculative. O'Shea v. Littleton, 414 U.S. 488, 494 (1974).

Defendants show good cause for setting aside the default in this case. The Court grants defendants' motion. The Court accepts defendants' answer to the complaint (Dkt. 48). The Court hereby establishes the following pretrial schedule:

(1) Discovery

All discovery shall be completed by November 28, 2014. Service of responses to interrogatories and to requests to produce, and the taking of depositions, shall be completed by this date. Federal Rule of Civil Procedure 33(a) requires answers or objections to be served within thirty (30) days after service of the interrogatories. The serving party, therefore, must serve his/her interrogatories at least thirty (30) days before the deadline in order to allow the other party time to answer.

(2) Dispositive Motions

Any dispositive motion shall be filed and served on or before December 19, 2014. Pursuant to LCR 7(b), any argument being offered in support of a motion shall be submitted as a part of the motion itself and not in a separate document. The motion shall include in its caption (immediately below the title of the motion) a designation of the date the motion is to be noted for consideration upon the Court's motion calendar. Dispositive motions shall be noted ...


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