United States District Court, D. Alaska
April 23, 2014
BILLY DEAN SMITH, et al., Plaintiffs,
ROBERT CORCORAN, et al., Defendants.
ORDER REGARDING PENDING MOTIONS
TIMOTHY M. BURGESS, District Judge.
Billy Dean Smith and Jacob Lee Anagick, self-represented prisoners, have filed the following motions in this case: (1) Motion to Compel Attorney Matthias Cicotte to Answer One Question; (2) Motion for Damage Hearing and Finding of Merit; (3) Motion to Serve Defendant Wellard; and (4) Application and Motion for Default Judgment.
1. Motion to Compel
When a party wishes to make a formal request for information from the other party, the party must do so using the discovery mechanisms set out in the Federal Rules of Civil Procedure. The most commonly used requests are those found in Rule 30 (depositions by oral examination), Rule 33 (interrogatories to parties), Rule 34, (production of documents) and Rule 36 (requests for admission). Only after a party fails to adequately respond to a discovery request, may the party making the request file a motion asking the court for assistance in obtaining the discovery. Thus, the Motion to Compel Attorney Matthias Cicotte to Answer One Question will be denied.
2. Motion for Damage Hearing and Finding of Merit
In the Motion for Damage Hearing and Finding of Merit, the Plaintiffs jump the gun. The Defendants oppose the Motion stating, in relevant part, as follows:
The question of § 1915A review is now moot, given the court's recent determination that the complaint, liberally construed, "appears to state a plausible claim of the violation of the Plaintiffs' Due Process Rights." Docket No. 36, n. 9. Of course, the mere fact that the complaint states a plausible claim for § 1915A purposes does not entitle plaintiffs to a finding in their favor on the merits and a damages hearing. Discovery has not yet commenced.
The Court agrees with the Defendants. This Motion is premature, and must be denied.
3. Motion to Serve Defendant Wellard
The Plaintiffs have shown that, when they sent the summons and complaint to Robert Corcoran at Lemon Creek Correctional Center (LCCC) by restricted delivery mail, the return receipt was signed on November 18, 2013. The same person who signed for Corcoran's summons and complaint at LCCC also signed for the summons and complaint directed to Defendant Wellard.
In the Opposition to Motion to Remand to State Court, counsel for the Defendants states as follows: "Counsel has already entered appearance for both defendants, so there will be no effort to dismiss this case for improper service." Based upon the representation of counsel, therefore, both Corcoran and Wellard were properly served, and the Motion to Serve Wellard will be denied as moot.
4. Application and Motion for Default Judgment
Although the Plaintiffs were told to "require an answer immediately or apply for default within 21 days from the date of this minute order, " they waited until an Answer had been filed to move for default. Counsel for the Defendants, however, should clarify whether the Answer can apply to both of the Defendants. The Court will address the Application and Motion for Default Judgment thereafter.
IT IS THEREFORE ORDERED:
1. The Motion to Compel, at Docket 33, is DENIED.
2. The Motion for Damage Hearing and Finding of Merit, at Docket 34, is DENIED.
3. The Motion to Serve Wellard, at Docket 44, is DENIED as moot.
4. Within 14 days of the date of this Order, counsel for the Defendants must clarify whether the Answer at Docket 37 applies to both Defendants Corcoran and Wellard, or file a separate or Amended Answer. No action will be taken on Dockets 40 and 41 until the time for this filing has run.