McCurdy v. Johnson
Filing
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ORDER Denying 54 Plaintiff's Motion for Entry of Clerks Default. Defendant shall have 30 days from the date of his 55 Response to file a responsive pleading. Signed by Judge Miranda M. Du on 02/27/2013. (Copies have been distributed pursuant to the NEF - AC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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LAURICE McCURDY,
Case No. 2:08-cv-01767-MMD-PAL
Plaintiff,
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v.
ORDER
S. JOHNSON,
(Plf.’s Motion for Entry of Clerk’s Default –
dkt. no. 54)
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Defendant.
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Before the Court is Plaintiff Laurice McCurdy’s Motion for Entry of Clerk’s Default.
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(Dkt. no. 54.) McCurdy filed this Motion seeking entry of Clerk’s default, noting that
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Defendant Officer S. Johnson failed to reply within thirty (30) days from the Court’s
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December 11, 2012, Order to Show Cause. On February 19, 2013, Johnson filed a
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Response to McCurdy’s Motion, and requested 30 days from the time of his filing to file a
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responsive pleading.
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Under Fed. R. Civ. P. 55(a), the Clerk must enter a default “[w]hen a party against
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whom a judgment for affirmative relief is sought has failed to plead or otherwise defend,
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that failure is shown by affidavit or otherwise.” Here, the Clerk already entered default
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against Johnson on April 27, 2012.
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Plaintiff’s first Motion for Default Judgment (see dkt. no. 38), the entry of default remains
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in this case, and McCurdy’s latest motion is duplicative.
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Response is his first filing in this Court, and represents an intent to defend this suit.
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Accordingly, entry of default in this matter is inappropriate.
(See dkt. no. 34.)
Although the Court denied
Furthermore, Johnson’s
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Accordingly, IT IS HEREBY ORDERED that Plaintiff Laurice McCurdy’s Motion for
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Entry of Clerk’s Default (dkt. no. 54) is DENIED. Defendant Officer S. Johnson shall
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have 30 days from the date of his Response (dkt. no. 55) to file a responsive pleading.
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IT IS SO ORDERED.
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DATED this 27th of February 2013.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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