(PC) Fresquez v. Moeroyk, et al, No. 1:2004cv05123 - Document 46 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Gary S. Austin on 12/4/2009, Recommending that Plaintiff's 45 Motion for Default Judgment be Denied. Matter referred to Judge Ishii. (Objections to F&R due by 1/6/2010)(Figueroa, O)

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(PC) Fresquez v. Moeroyk, et al Doc. 46 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 LOUIS RICHARD FRESQUEZ, 8 Plaintiff, 9 10 1:04-cv-05123-AWI-GSA-PC FINDINGS AND RECOMMENDATION TO DENY MOTION FOR DEFAULT JUDGMENT (Doc. 45.) v. MOEROYK, et al., 11 OBJECTIONS, IF ANY, DUE IN THIRTY DAYS Defendants. / 12 13 14 15 I. FINDINGS A. Background Louis Richard Fresquez (“Plaintiff”) is a state prisoner proceeding pro se in this civil 16 rights action filed pursuant to 42 U.S.C. § 1983. This action now proceeds with Plaintiff's 17 amended complaint filed March 18, 2003, on Plaintiff’s ADA and RA claims against defendants 18 Moeroyk and Maka (“Defendants”). On October 21, 2009, Plaintiff filed a motion for default 19 judgment against Defendants. (Doc. 45.) 20 B. 21 Entry of default is appropriate as to any party against whom a judgment for affirmative 22 relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of 23 Civil Procedure and where that fact is made to appear by affidavit or otherwise. See Fed. R. Civ. 24 P. 55(a). Rule 12 of the Federal Rules of Civil Procedure provides, “[A] defendant must serve an 25 answer within 20 days after being served with the summons and complaint; or if it has timely 26 waived service under Rule 4(d), within 60 days after the request for a waiver was sent.” Fed. R. 27 Civ. P. 12(a)(1)(A). Under Rule 4(d), a defendant may waive service of a summons by signing 28 and returning a waiver of service. Fed R. Civ. P. 4(d). Entry of Default and Default Judgment 1 Dockets.Justia.com 1 Plaintiff argues that he is entitled to default judgment against Defendants because he sent 2 documents to the court to initiate service on July 1, 2009, and there has been no response. 3 In this action, the court issued an order on July 8, 2009, directing the United States 4 Marshal to attempt service upon Defendants. (Doc. 42.) On September 21, 2009, the Marshal 5 filed returns of service unexecuted as to both Defendants, with notations indicating the Marshal 6 was unable to locate either of the Defendants for service of process. (Doc. 44.) On August 12, 7 2009, the Marshal mailed copies of the summons and complaint, and waivers of service, to 8 Defendants via the California Department of Corrections (“CDC”) in Sacramento, California, 9 pursuant to Plaintiff’s instructions. Id. The Marshal’s notations indicate that Defendants’ names 10 were not found on the CDC Locator’s list. Id. Plaintiff has not submitted any evidence that 11 Defendants were served with the summons and complaint or timely waived service pursuant to 12 Rule 4, and neither of the Defendants has made an appearance in this action. Fed. R. Civ. P. 4. 13 Therefore, Plaintiff is not entitled to entry of default or default judgment against either of the 14 Defendants, and Plaintiff’s motion for default judgment should be denied, without prejudice. 15 II. 16 17 18 RECOMMENDATION In accordance with the above, IT IS HEREBY RECOMMENDED that Plaintiff's motion for default judgment be DENIED, without prejudice. These findings and recommendation are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days 20 after being served with these findings and recommendation, plaintiff may file written objections 21 with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings 22 and Recommendation." Plaintiff is advised that failure to file objections within the specified 23 time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 24 (9th Cir. 1991). 25 26 IT IS SO ORDERED. Dated: 220hhe December 4, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28 2

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