Filed: Apr. 24, 2018
Latest Update: Apr. 24, 2018
Summary: ORDER JANE M. VIRDEN , Magistrate Judge . Before the Court are Defendants' Motion [14] for extension of time and request for date certain to respond to the complaint and Plaintiff's motion [17] for entry of default. For the reasons set out below, Defendants' motion is granted in part, and Plaintiff's motion is denied. By their motion for extension [14] filed April 5, 2018, Defendants point out that notice and acknowledgement (of receipt of complaint and summons by mail) forms served on De
Summary: ORDER JANE M. VIRDEN , Magistrate Judge . Before the Court are Defendants' Motion [14] for extension of time and request for date certain to respond to the complaint and Plaintiff's motion [17] for entry of default. For the reasons set out below, Defendants' motion is granted in part, and Plaintiff's motion is denied. By their motion for extension [14] filed April 5, 2018, Defendants point out that notice and acknowledgement (of receipt of complaint and summons by mail) forms served on Def..
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ORDER
JANE M. VIRDEN, Magistrate Judge.
Before the Court are Defendants' Motion [14] for extension of time and request for date certain to respond to the complaint and Plaintiff's motion [17] for entry of default. For the reasons set out below, Defendants' motion is granted in part, and Plaintiff's motion is denied.
By their motion for extension [14] filed April 5, 2018, Defendants point out that notice and acknowledgement (of receipt of complaint and summons by mail) forms served on Defendant GE and Defendant Contreras by the U.S. Marshal Service omitted any indication of a date certain from which their 21 days to respond to the complaint would run.1 Plaintiff has not responded to this motion; however, on April 10, 2018, she filed both a motion [17] requesting the Clerk's entry of default against all defendants and a motion [18] for default judgment against all defendants. According to the motion requesting the Clerk's entry of default, "the return date in this matter was 03/26/18" and "[a]s of 04/09/2018 of filing this motion, [defendants have] not filed a Response [sic] with the Court."
In their response [23] (and supporting memo) to Plaintiff's motion requesting the Clerk's entry of default, Defendants submit, inter alia, that the basis of Plaintiff's motion, the representation that Defendants were served with process on March 5, 2018, making their responsive pleadings due by March 26, 2018, is incorrect because the record demonstrates no defendant was served on March 5. Defendants further contend they have appeared and are defending against this suit.
Pursuant to FED.R.CIV.P. 55(a), the Clerk must enter a party's default when that party "has failed to plead or otherwise defend, and that failure has been shown by affidavit or otherwise." Here, however, having considered the record which indicates Defendant GE's answer was due by April 20, 20182 and that Defendant Contreras's answer was due by April 23, 20183, and that all defendants filed their respective answers to the amended complaint on April 10, 2018, the Court finds Defendants GE and Contreras have timely answered the amended complaint; Defendants' motion for an extension of time to respond to the complaint (as amended) is moot with respect to GE and Contreras; and Plaintiff's motion requesting the Clerk's entry of default against all Defendants is without merit. With respect to Defendant Droder, he has clearly indicated he intends to defend against this lawsuit by his request for additional time to respond to the amended complaint and his answer [20] filed the same day as Plaintiff's request for the Clerk's entry of default. As such, the Court finds said Defendant's motion requesting additional time and a date certain to respond to the amended complaint is well taken4, and Droder's answer filed April 10 is deemed timely filed.5
SO ORDERED.