Smithee et al v. California Correctional Institution et al

Filing 36

ORDER GRANTING 35 Request for Additional Time to Respond to Second Amended Complaint and DENYING 33 Request to Enter Default, signed by Magistrate Judge Jennifer L. Thurston on 7/31/2019. (Hall, S)

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JEFFREY E. BEESON, SBN 200897
MICHAEL A. TERHORST, SBN 164679
Attorneys at Law
BEESON TERHORST LLP
510 Bercut Drive, Suite V
Sacramento, California 95811-0111
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant Dr. Pratap Narayan M.D.
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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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510 BERCUT DRIVE, SUITE V
SACRAMENTO, CALIFORNIA 95811-0111
[phone] TELEPHONE
[phone] FACSIMILE

BEESON TERHORST LLP

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DANA SMITHEE, “E.M.”, a minor, by and
through her guardian ad litem, JENNIFER
MONTES,

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Plaintiffs,
v.

CASE NO. 1:19-cv-00004-LJO-JLT
DEFENDANT PRATAP NARAYAN,
M.D.’S OPPOSITION TO REQUEST FOR
ENTRY OF DEFAULT; REQUEST FOR
ADDITIONAL TIME TO RESPOND TO
SECOND AMENDED COMPLAINT;
DECLARATION OF JEFFREY E.
BEESON; PROPOSED ORDER

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RHONDA LITT-STONER, PRATAP
NARAYAN, MD., JENNIFER SEYMOUR,
KELLY NESSON, PhD, KARIN CELOSE
and Does 1 through 200,

(Doc. 35)

Defendants.

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Defendant PRATAP NARAYAN, M.D. (“Narayan”) hereby opposes the request for entry
of default and requests additional time to respond to the second amended complaint. This
opposition and request are based on the supporting Declaration of Jeffrey E. Beeson and all

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documents filed with this court.

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I, JEFFREY E. BEESON, hereby declare and state as follows:

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1. I am an attorney licensed to practice before this court and the courts of the State of
California. I am one of the attorneys for Defendant Narayan in the above captioned case.

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-1DEFENDANT PRATAP NARAYAN, M.D.’S OPPOSITION TO REQUEST FOR ENTRY
OF DEFAULT; REQUEST FOR ADDITIONAL TIME TO RESPOND TO SECOND
AMENDED COMPLAINT; DECLARATION OF JEFFREY E. BEESON

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2. This declaration is based upon my personal knowledge and, if called as a witness, I
could competently testify to the matters stated herein.

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3. On July 29, 2019 our law firm Beeson Terhorst LLP first learned of this case against
Narayan. On that date we were first retained to represent Narayan. On July 29, 2019 we

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first received a request for representation from Narayan through the Office of Legal

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Affairs of the California Department of Corrections and Rehabilitation (CDCR) and

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agreed to represent Narayan.

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4.

On July 29, 2019 we also learned that Plaintiffs had filed a July 26, 2019 request for
entry of default of Narayan (ECF 33); on July 3, 2019 Narayan had been subject to
substitute service at an address of record with the Medical Board of California; and

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5. On July 29,2019 I communicated with Plaintiff’s counsel Markus Willoughby by

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510 BERCUT DRIVE, SUITE V
SACRAMENTO, CALIFORNIA 95811-0111
[phone] TELEPHONE
[phone] FACSIMILE

BEESON TERHORST LLP

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Proof of Service of the summons was filed July 17, 2019. (ECF 31 at 2)
telephone and email. I advised of our recent retainer to represent Narayan and sought

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agreement for a stipulation to set aside or withdraw the request for entry of default and

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allow time for us to familiarize ourselves with the case and file a response to the second
amended complaint on or before August 15, 2019. Mr. Willoughby responded that this

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was his “Law Partner’s case”, Mr. Brod, and he forwarded my request to Mr. Brod.

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6. Later that evening of July 29, 2019 Mr. Willoughby further advised in an email that Mr.

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Brod was on vacation this week of July 29, 2019.
7. In order to avoid any delay in addressing the request for entry of default we have filed
this opposition and request for additional time for response to the second amended
complaint (ECF 26) without the benefit of direct communication with Mr. Brod.

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8. This request is made in good faith, not for delay, will not prejudice Plaintiffs and is
based on good cause.

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I declare under penalty of perjury under the laws of the State of California and of the United States
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of America, that the foregoing is true and correct.
Executed in Santa Rosa, California this 30th day of July,2019,

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/s/ Jeffrey E. Beeson
__________________

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JEFFREY E. BEESON

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-2DEFENDANT PRATAP NARAYAN, M.D.’S OPPOSITION TO REQUEST FOR ENTRY
OF DEFAULT; REQUEST FOR ADDITIONAL TIME TO RESPOND TO SECOND
AMENDED COMPLAINT; DECLARATION OF JEFFREY E. BEESON

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[PROPOSED] ORDER
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Good cause appearing, the Plaintiff’s request for entry of default of Defendant

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PRATAP NARAYAN, M.D. is DENIED. Defendant PRATAP NARAYAN, M.D.’s request for

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additional time to respond to the second amended complaint is GRANTED. He SHALL file a

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responsive pleading no later than August 15, 2019.

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IT IS SO ORDERED.

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Dated:

July 31, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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510 BERCUT DRIVE, SUITE V
SACRAMENTO, CALIFORNIA 95811-0111
[phone] TELEPHONE
[phone] FACSIMILE

BEESON TERHORST LLP

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-3DEFENDANT PRATAP NARAYAN, M.D.’S OPPOSITION TO REQUEST FOR ENTRY
OF DEFAULT; REQUEST FOR ADDITIONAL TIME TO RESPOND TO SECOND
AMENDED COMPLAINT; DECLARATION OF JEFFREY E. BEESON