Sosa v. Mejia

Filing 19

ORDER NOT ADOPTING FINDINGS AND RECOMMENDATIONS, document 17 , and GRANTING defendant's Motion to Set Aside Entry of Default, document 11 ; order signed by Judge Oliver W. Wanger on 5/9/2011. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JESUS SOSA,

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Plaintiff,

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CASE NO. 1:10-cv-01454-OWW-MJS
ORDER NOT ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING
MOTION TO SET ASIDE ENTRY OF
DEFAULT

v.
GERARDO MEJIA,

(ECF No. 11)
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Defendant.
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Plaintiff Jesus Sosa, filed this action seeking relief from Defendant Gerardo Mejia, doing

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business as Mejia's Taco Shop, pursuant to the Americans with Disabilities Act and related

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California statutes. Defendant Mejia filed a Motion to Set Aside Entry of Default that was referred

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to the Magistrate Judge for the preparation of findings and recommendation pursuant to 28 U.S.C.

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§ 636(b)(1)(B). The Magistrate Judge issued his Findings and Recommendation on April 7, 2011.

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It was served on all parties and stated that any objections were to be filed within fourteen (14) days

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of service. (ECF No. 17.)

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To date, neither party has filed objections to the Findings and Recommendation. In

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accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 303, this Court has

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conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds

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the Findings and Recommendations are not supported by the record and by proper analysis.

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A default has previously been set aside in a related case. The preference for resolution of

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cases on the merits and the total absence of prejudice to Plaintiff justify setting aside the default

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based on Defendant’s counsel’s misunderstanding that Plaintiff would amend the complaint by

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agreement. Improper joinder of a deceased party, ownership issues, and misidentity of all parties

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caused counsel to believe that Plaintiff would amend. The Magistrate Judge’s Findings &

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Recommendations to deny the motion to set aside default are NOT ADOPTED.

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IT IS ORDERED that:

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The Findings and Recommendation, filed April 7, 2011, are not adopted in full;

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Defendant's Motion to Set Aside Entry of Default is GRANTED.IT IS SO
ORDERED.

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emm0d6Dated:
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May 9, 2011

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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