Andrich v. Glynn

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Devin Andrich, No. CV 21-00047-TUC-RM 10 Plaintiff, 11 v. ORDER 12 Courtney R. Glynn, et al., 13 Defendants.

14 15 Plaintiff Devin Andrich brought this pro se civil rights action pursuant to 42 U.S.C. 16 § 1983. (See Doc. 31.) Pending before the Court are Defendants’ Motion for Extension of 17 Time to File Answer (Docs. 53, 56), Plaintiff’s Motion to Strike Defendants’ Motion for 18 Extension of Time to File Answer (Doc. 55), and Plaintiff’s Application for Entry of 19 Default (Doc. 54). 20 After Plaintiff filed his First Amended Complaint (Doc. 31), Defendants Keith 21 Dusek, Julia Erwin, Courtney Glynn, Brad Keough, Shandan Nettles, Charles Ryan, David 22 Shinn, and Larry Gann filed a timely Motion to Dismiss (Docs. 33, 44), which the Court 23 partially granted and partially denied on February 15, 2022 (Doc. 51). 24 Defendant Sanders waived service of process (Doc. 41) but did not join the other 25 Defendants’ Motion to Dismiss; therefore, his Answer was due within 60 days after 26 Plaintiff sent the request for waiver of service. See Fed. R. Civ. P. 12(a)(1)(A)(ii). 27 Defendants Dusek, Erwin, Gann, Glynn, Keough, Nettles, Ryan, and Shinn were required 28 1 to file a responsive pleading within 14 days after the Court’s resolution of their Motion to 2 Dismiss. See Fed. R. Civ. P. 12(a)(4)(A). 3 In their pending Motion for Extension of Time to File Answer, Defendants Dusek, 4 Erwin, Gann, Glynn, Keough, Nettles, Ryan, and Shinn request a fourteen-day extension 5 of their deadline for filing a responsive pleading. (Doc. 51.) In support of their request, 6 Defendants aver that they substituted counsel on February 24, 2022 and therefore require 7 additional time to review the pleadings and prepare an Answer. (Id.) Defendant Sanders 8 joins in the other Defendants’ Motion for Extension of Time to File Answer. (Doc. 56.) 9 Plaintiff moves to strike, or in the alternative, opposes the Motion for Extension of 10 Time. (Doc. 55.) Plaintiff moves to strike the Motion on the basis that the Motion for 11 Extension of Time does not comply with LRCiv 7.3(b), which requires parties moving for 12 an extension of time to state the position of the other party or, if the other party’s position 13 is not ascertainable, to include a statement to that effect. See LRCiv 7.3(b). In the 14 alternative, Plaintiff opposes the Motion on the grounds that Defendants failed to prepare 15 an Answer during the previous nine months of this litigation and therefore should not be 16 permitted additional time at this juncture. Plaintiff does not address the fact that the Court 17 only recently resolved Defendants’ Motion to Dismiss. 18 “[A] motion to strike may be filed only if it is authorized by statute or rule . . . or if 19 it seeks to strike any part of a filing or submission on the ground that it is prohibited (or 20 not authorized) by a statute, rule, or court order.” LRCiv 7.2(m). Plaintiff does not identify 21 a basis for concluding that a motion for extension of time should be stricken if it violates 22 LRCiv 7.3(b) by not stating the position of the other party or including a statement why 23 the other party’s position is not ascertainable. In some circumstances, a violation of LRCiv 24 7.3(b) may constitute grounds for the denial of a motion for extension of time, but here the 25 violation is harmless because Plaintiff has made his position known. Defendants are 26 warned that they must comply with LRCiv 7.3(b) in the future; however, the court does not 27 find their non-compliance in this instance to justify striking their Motion for Extension of 28 Time. Accordingly, the Motion to Strike will be denied. 1 The Court finds that Defendants’ recent substitution of counsel establishes good 2 cause for Defendants’ requested extension of the deadline for filing a responsive pleading. 3 Accordingly, the Court will grant Defendants’ Motion for Extension of Time, nunc pro 4 tunc. The Court notes that Defendant Sanders is requesting significantly more than a 5 fourteen-day extension of time, given that his Answer was due within sixty days after 6 Plaintiff sent a request for waiver of service to him. However, Defendant Sanders’ waiver 7 of service indicates he intends to participate in this litigation and defend against it, and it 8 appears that his prior failure to join the other Defendants’ Motion to Dismiss was an 9 inadvertent oversight. Accordingly, the Court will grant the Motion for Extension of Time 10 as to all Defendants, including Defendant Sanders. 11 Plaintiff filed an Application for Entry of Default (Doc. 54) to which Defendants 12 responded (Doc. 57). Plaintiff requests entry of default on the grounds that Defendants did 13 not timely respond to his First Amended Complaint. (Doc. 54.) 14 The Clerk must enter default when “a party against whom a judgment for affirmative 15 relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit 16 or otherwise[.]” Fed. R. Civ. P. 55(a). After default has been entered by the Clerk, the party 17 may apply to the Court for a default judgment. Fed. R. Civ. P. 55(b)(2). 18 Factors which may be considered by courts in exercising discretion as to the entry of a default judgment include: (1) the 19 possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the 20 complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether 21 the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure 22 favoring decisions on the merits. 23 Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). 24 As discussed above, the Court is granting Defendants’ request for an extension of 25 time to file an Answer, nunc pro tunc. Given that extension of time, Defendants have not 26 “failed to plead” as contemplated by Rule 55(a). Accordingly, the Application for Default 27 will be denied. 28 . . . . 1 IT IS ORDERED: 2 (1) Defendants’ Motion for Extension of Time to File Answer (Docs. 53, 56) is granted, nunc pro tunc. Defendants shall file an Answer to Plaintiff's Amended Complaint 4| within fourteen (14) days of the date this Order is issued. 5 (2) Plaintiffs Motion to Strike (Doc. 55) is denied. 6 (3) Plaintiff's Application for Entry of Default (Doc. 54) is denied. The Clerk 7 | of Court shall NOT enter default in this matter. 8 Dated this 14th day of March, 2022. 9 10 ul am 7 pDfr □□ 12 TD £ te Z □□ Honorable Rostsiary □□□□□□□ 13 United States District □□□□□ 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28