Free Order on Motion for Default Judgment - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. Douglas Freet, et al., Defendants. ) Plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 on April 5, 2004. (Doc. 1). The complaint was screened, several Stuart Othello Carter, Plaintiff, ) ) ) ) ) ) ) )

CIV 04-685 PHX ROS (VAM) O R D E R

defendants were dismissed and service was ordered on defendants Freet, Meaney and Maskell. (Doc. 5). Initial attempts to serve (Doc. 9). On May 10, 2005,

defendant Meaney were unsuccessful.

defendant Meaney's waiver of service was received by the Court. (Doc. 23). Dismiss. On May 20, 2005, defendant Maskell filed a Motion to (Doc. 24).

On August 11, 2005, plaintiff filed a request for entry of default and default judgment as to defendant Meaney. 26). (Docs. 25,

Counsel for defendant Maskell immediately notified the Court (Doc.

that counsel was attempting to locate defendant Meaney. 27). On

August 17, 2005, defendant Meaney appeared through

counsel asking that the Motion for Default Judgment be denied and joined in the existing Motion to Dismiss. (Doc. 28). In short, a

mere six days after the Motion for Default Judgment was filed, Case 2:04-cv-00685-ROS-VAM Document 31 Filed 09/02/2005 Page 1 of 3

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defendant Meaney appeared and joined in the Motion to Dismiss. The request for entry of default (Doc. 25) and the request for entry of default judgment (Doc. 26) will be denied. no prejudice to the plaintiff in denying these motions. There is A

decision on the merits is always favored rather than a default and once defendant Meaney was contacted and realized what it meant to waive service, defendant Meaney immediately appeared. to timely appear was due to mistake and inadvertence. Meaney has now joined in the pending Motion to Dismiss. The failure Defendant In

addition, the Motion to Dismiss argues that plaintiff has failed to exhaust his administrative remedies. If the Motion to Dismiss

is well taken, this case will be terminated as to all defendants. A review of the file indicates that defendant Freet has not been served. The U.S. Marshal attempted personal service and

noted: "3/18/05 Douglas Freet no longer works for Swift Transportation and they don't have any forwarding information on him." (Doc. 15). The Court has no ability to locate defendant

Freet and personal service is required. IT IS THEREFORE ORDERED that plaintiff shall show cause why this case should not be dismissed without prejudice against defendant Freet for inability to serve him. cause no later than September 16, 2005. IT IS FURTHER ORDERED denying plaintiff's Motion for Entry of Default and Motion for Entry of Default Judgment. (Docs. 25, 26). Plaintiff shall show

IT IS FURTHER ORDERED that the Motion to Dismiss (Doc. 24) filed by plaintiff be removed from the motions list as it is a response to defendants' Motion to Dismiss and not a motion. 2 Case 2:04-cv-00685-ROS-VAM Document 31 Filed 09/02/2005 Page 2 of 3

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Document 24 shall be removed from the motions list. DATED this 2nd day of September, 2005.

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