United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
RICHARD CREATURA, UNITED STATES MAGISTRATE JUDGE
District Court has referred this 42 U.S.C. § 1983 civil
rights action to United States Magistrate Judge J. Richard
Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B),
and local Magistrate Judge Rules MJR1, MJR3, and MJR4.
matter is before the Court on plaintiff's motion
“for judgment” against defendant ABHS-a motion
that the Court interprets a motion for entry of default and
default judgment under Federal Rule of Civil Procedure 55.
See Dkt. 19. The undersigned recommends denying
plaintiff's motion because ABHS has since filed its
answer. See Dkt. 28.
August 21, 2019, the Court directed service of
plaintiff's civil rights complaint by first class mail to
defendants including defendant ABHS. See Dkt. 7. The
order directing service informed defendants that they had 30
days in which to return a waiver of service of summons and-if
they waived service of summons-60 days from date on the
notice of lawsuit to serve an answer or motion under Federal
Rule of Civil Procedure 12. See Dkt. 7, at 2.
Otherwise, defendants would be personally served, possibly at
their own expense. See Dkt. 7, at 2.
Clerk's Office sent the complaint and order by
first-class mail to all named defendants, including defendant
ABHS. See Dkt. 7. The Clerk's Office also sent a
copy of the waiver of service of summons form, which informed
defendants that failure to file and serve an answer or motion
under Rule 12 within 60 days of August 23, 2019, could result
in a judgment being entered against a defendant. See,
e.g., Dkt. 9, at 1.
ABHS returned a service waiver (Dkt. 10) and entered an
appearance in this matter. See Dkt. 11. However,
defendant ABHS failed to file an answer within 60 days of
August 23, 2019. See Dkt. 28. Plaintiff filed his
“motion for judgment, ” against defendant ABHS.
See Dkt. 19. The Court directed ABHS to respond to
the motion, which the Court interpreted as a “motion
for entry of default, ” on or before November 12, 2019.
See Dkt. 23, at 2. On November 12-approximately
three weeks after the answer was due-ABHS responded by filing
its answer to plaintiff's complaint. See Dkt.
plaintiff may move for entry of default and default judgment
if a defendant fails to plead or otherwise defend.
See Fed. R. Civ. P. 55. It is in the court's
discretion to grant or deny a motion for default; however,
default is disfavored and “whenever it is reasonably
possible cases should be decided upon their merits.”
In re Hammer, 940 F.2d 524, 525 (9th Cir. 1991)
(quoting Gregorian v. Izvestia, 871 F.2d 1515, 1523
(9th Cir. 1989) (internal quotation omitted)). The entry of
default judgment is a drastic step that a court should
decline to take if defendants show intent to defend. See
generally Wilson v. Moore & Assocs., 564 F.2d 366,
369 (9th Cir. 1977); see also Chevalier v. Sutter
Hotel, No. C-07-0401 MMC, 2008 WL 618919, at *1 (N.D.
Cal. Mar. 5, 2008) (declining to enter default judgment when
defendant submitted its responsive pleading eight days beyond
the prescribed deadline). A defendant must serve an answer
within 21 days after being served with the summons and
complaint or within 60 days after the request for a waiver of
service is sent. See Fed. R. Civ. P. 12.
although defendant ABHS waived service, it failed to file its
answer within the 60-day period after the request for a
waiver of service was sent. Nonetheless, defendant ABHS has
now filed an answer-albeit late-and had demonstrated its
intent to defend. Entry of default and default judgment would
deprive defendant ABHS of the opportunity to defend the case
on its merits. Therefore, the undersigned recommends denying
plaintiff's “motion for judgment” against
defendant ABHS-a motion that the Court interprets as one for
entry of default and default judgment.
“motion for judgment” (Dkt. 19) should be denied.
to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the
parties shall have fourteen (14) days from service of this
Report to file written objections. See also Fed. R.
Civ. P. 6. Failure to file objections will result in a waiver
of those objections for purposes of de novo review
by the district judge (see 28 U.S.C. §
636(b)(1)(C)) and can result in a result in a waiver of those
objections for purposes of appeal. See Thomas v.
Arn, 474 U.S. 140 (1985); Miranda v. Anchondo,
684 F.3d 844, 848 (9th Cir. 2012) (citations omitted).