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Hadden v. Kidd

United States District Court, Ninth Circuit

December 13, 2013

TRACI HADDEN, Plaintiff,
v.
RANDY KIDD, et al, Defendants.

MEMORANDUM DECISION AND ORDER

B. LYNN WINMILL, Chief District Judge.

INTRODUCTION

The Court has before it Plaintiff's Motion for Entry of Default as to Defendant Ringle F.R.C.P. 55(b)(2) (Dkt. 28).

BACKGROUND

Plaintiff Tracy Hadden filed her Complaint on January 20, 2012. Hadden asserted claims against defendants Randy Kidd, Kevin Halverson, and John Ringle. Five days later, Hadden filed an application to proceed in forma pauperis . Magistrate Judge Williams granted that motion on May 8, 2012. A summons was issued to each of the three defendants on May 31, 2012. Defendants Kidd and Halverson each waived service and filed answers to the Complaint on July 16, 2012. Defendant Ringle did not waive service, file an answer, or make an appearance in the case.

On November 7, 2012, after the case was reassigned to the undersigned District Judge, the Court conducted a telephone scheduling conference and entered a Case Management Order. All deadlines in the CMO have now passed.

Defendants Kidd and Halverson, both represented by attorney Blake Hall, filed a motion for summary judgment on August 29, 2013. Hadden filed a response to the motion, but two weeks later the parties filed a "Stipulation for Dismissal with Prejudice." (Dkt. 24). The stipulation stated that "[i]t is hereby stipulated and agreed, by and between the parties, through their attorneys of record, that the complaint filed by Plaintiff in the above-referenced matter may be dismissed with prejudice as against Defendants, with each party to bear its own costs and attorney fees." (Dkt. 24). The next day the Court granted the stipulation, dismissed the case in its entirety, and entered Judgment. (Dkts. 25 & 26).

About one week later, on November 5, 2013, Hadden filed a Motion for Correction of Judgment. (Dkt. 29). Hadden clarified that the stipulation pertained only to plaintiff and "the defendants named therein, " Kidd and Halverson. A review of the stipulation revealed that no defendants were "named therein;" it simply stated "Defendants." However, the caption of the stipulation listed Kidd and Halverson, but not Ringle, and at that point Ringle had not even appeared in the case. Accordingly, the Court withdrew the earlier Judgment, and dismissed the case only as against defendants Kidd and Halverson.

On the same day Hadden filed her motion for correction, she also filed an affidavit of service indicating that Ringle had been served almost a year and a half earlier on June 20, 2012. She also filed the pending Motion for Entry of Default as to Ringle. (Dkt. 28). Ringle filed his Answer to the Complaint the next day. A day later, Ringle filed an "Objection to Motion for Entry of Default as to John Ringle, " and Hadden timely replied. The issue is now ripe for the Court's consideration.

ANALYSIS

Before addressing the motion for default, the Court must clarify a couple procedural items which bear on the pending motion. Specifically, the Court must address Ringle's Answer to the Complaint and proof of service.

1. Answer

First, the Court must address Ringle's tardy Answer. The Complaint was filed on January 20, 2012, and after the Court granted Hadden leave to proceed in forma pauperis , a summons was issued to Ringle and the other two defendants on May 31, 2012. After waiving service, the other two defendants timely filed their answers on July 16, 2012. Because Ringle did not waive service, his Answer was due 21 days after he received the summons - sometime in late June 2012. He did not file his Answer until November 6, 2013, the day after Hadden filed her motion for default against him. Thus, Ringle's Answer was nearly 15 months late, and it was filed after all deadlines in the CMO had passed.

Rule 6 requires that when an act must be done within a specified time, the court may extend the time for good cause shown with or without motion or notice if a request for extension is made before the original time expires. Fed.R.Civ.P. 6(b)(1)(A). Otherwise, the Court may, for good cause, extend the time only "on motion made after the time has expired if the party failed to act because of excusable neglect." Fed.R.Civ.P. 6(b)(1)(B). Here, no request for extension was made before the original time expired - in fact, no motion or request for ...


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