Acosta v. Aquayo et al

Filing 16

ORDER Construing Defendants' 15 Objections to Magistrate Judge's Findings and Recommendations as a Motion to Set Aside Default and Requiring Plaintiff to File a Response, signed by Magistrate Judge Barbara A. McAuliffe on 03/5/2018. (Case Management Deadline: 3/23/2018)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSE ACOSTA,

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Plaintiff,
v.
MARIA DE JESUS AQUAYO; JOSE A.
CHAVIRA,
Defendants.

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Case No.: 1:17-cv-01047-LJO-BAM
ORDER CONSTRUING DEFENDANT’S
OBJECTIONS TO MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATIONS AS A
MOTION TO SET ASIDE DEFAULT AND
REQUIRING PLAINTIFF TO FILE A
RESPONSE
(Docs. 8, 13, 15)

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On August 4, 2017, Jose Acosta (“Plaintiff”) filed a complaint seeking damages, injunctive and

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declaratory relief, attorney fees and costs against Defendants Maria de Jesus Aquayo and Jose A.

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Chavira pursuant to Title III of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101, et

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seq.) (“ADA”) and related California statutes. Doc. No. 1. The Summons and Complaint were served

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personally on Defendant Aquayo on August 13, 2017, and by substituted service on Defendant

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Chavira on the same date. Doc. Nos. 5, 6. Defendants did not answer the complaint, and the Clerk of

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the Court entered default against them on September 27, 2017. Doc. No. 8.

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On December 11, 2017, Plaintiff filed a motion for default judgment against Defendants. Doc.

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No. 10. Defendants did not file a response. Thereafter, on January 24, 2018, the Court issued findings

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and recommendations that Plaintiff’s motion for default judgment be granted. The Court also directed

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Plaintiff to serve Defendants with a copy of the findings and recommendations by mail. Doc. No. 13.

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On February 7, 2018, Defendant Aquayo filed objections to the findings and

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recommendations. Defendant Aquayo explains that the business at issue is not profitable. When she

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received the case and saw the amounts being charged against her, she did not know how to act or

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react. Defendant Aquayo further explains that she has not learned English and she had her daughter

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translate the papers, but was given the wrong court date. She has been to court two times on this

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matter, but learned that it had been continued and there would not be a hearing. She further explains

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that Defendant Chavira is not her husband, but is a friend that voluntarily helped her with the business.

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Defendant Aquayo asks for reconsideration of her case and time to fix what is needed at the store to

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accommodate disabled individuals. Doc. 15.

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The Court construes the objections as a motion by Defendant Aquayo, appearing pro se, to set

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aside the Clerk’s entry of default and to vacate the findings and recommendations, and an answer to

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the Complaint.

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Aquayo’s filing. See Franchise Holding II, LLC v. Huntington Rests. Group, Inc., 375 F.3d 922, 926

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(9th Cir. 2004).

Accordingly, Plaintiff will be allowed an opportunity to respond to Defendant

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Defendant Aquayo is ADVISED that although she has the right to appear on her own behalf in

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this action, she has no authority to appear as an attorney for Defendant Jose A. Chavira. See Johns v.

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County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (non-attorney proceeding pro se may bring his

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own claims to court, but has no authority to appear as an attorney for others).

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Accordingly, IT IS HEREBY ORDERED as follows:

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1.

Defendant Aquayo’s objections filed on February 7, 2018 are CONSTRUED as a

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Motion to Set Aside the Clerk’s Entry of Default and to Vacate the Findings and

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Recommendations Regarding Plaintiff’s Motion for Default Judgment and an answer to

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the Complaint;

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2.

Plaintiff’s opposition to the Motion to Set Aside the Clerk’s Entry of Default and to

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Vacate the Findings and Recommendations Regarding Plaintiff’s Motion for Default

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Judgment is due on or before March 23, 2018; and
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Plaintiff is ordered to serve a copy of this ORDER and his response to the Motion to

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Set Aside the Clerk’s Entry of Default and to Vacate the Findings and

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Recommendations Regarding Plaintiff’s Motion for Default Judgment on Defendant

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Maria De Jesus Aquayo and Defendant Jose Chavira at 1419 S. Highland Avenue,

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Sanger, California 93657.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

March 5, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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