(PC) Aguirre v. Smith et al, No. 1:2022cv01078 - Document 28 (E.D. Cal. 2023)
Court Description: ORDER ADOPTING 25 Findings and Recommendations That Plaintiff's Request for Entry of Default be Denied signed by District Judge Jennifer L. Thurston on 11/8/2023.(Xiong, J.)
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(PC) Aguirre v. Smith et al Doc. 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AARON AGUIRRE, 12 13 14 15 Plaintiff, v. OFFICER D. SMITH, et al., Defendants. Case No. 1:22-cv-01078 JLT EPG (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT BE DENIED (Docs. 18, 25) 16 17 Aaron Aguirre seeks to hold the defendants liable for violations of his civil rights pursuant 18 to 42 U.S.C. § 1983. Plaintiff moved for default against Defendants D. Smith and N. Gonzalez. 19 (Doc. 18.) Gonzalez opposed default and requested an extension of time to file a responsive 20 pleading. (Doc. 21.) Smith joined in the opposition. (Docs. 22, 23.) Gonzalez and Smith then 21 responded to the complaint by filing a motion to dismiss. (Doc. 24.) 22 On October 3, 2023, the magistrate judge observed that the defendants have now appeared 23 in the action and indicated an intent to defend the claims raised against them. (Doc. 25 at 5.) The 24 magistrate judge noted default is disfavored and found that “Plaintiff was not unduly prejudiced 25 by the delay in responding to the complaint.” (Id.) Therefore, the magistrate judge recommended 26 the request for default be denied, and Defendants’ request for an extension of the deadline to file 27 a responsive pleading be granted. (Id.) 28 The Court served the Findings and Recommendations on all parties and notified them that Dockets.Justia.com 1 any objections were due within 14 days of service. (Doc. 25 at 5-6.) The parties were also 2 informed the “failure to file objections within the specified time may result in the waiver of rights 3 on appeal.” (Id. at 6, citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) No 4 objections were filed, and the time to do so expired. 5 Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this case. 6 Having carefully reviewed the matter, the Court concludes the Findings and Recommendations 7 are supported by the record and proper analysis. Accordingly, the Court ORDERS: 8 1. The Findings and Recommendations issued on October 03, 2023 (Doc. 25) are ADOPTED in full. 9 10 2. Plaintiff’s application for entry of default (Doc. 18) is DENIED. 11 3. Defendant Gonzalez’s request for an extension of time to file a responsive 12 pleading (Doc. 21) is GRANTED, nunc pro tunc. 13 14 15 IT IS SO ORDERED. Dated: November 8, 2023 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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