Avalos v. Amador et al
Filing
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Order extending time for service; Order setting scheduling conference on September 16, 2021 at 10:30 am, signed by Magistrate Judge Erica P. Grosjean on 7/15/2021. (Filing Deadline: 8/20/2021; Telephonic Scheduling Conference set for 9/16/2021 at 10:30 AM in Courtroom 10 (EPG) before Magistrate Judge Erica P. Grosjean)(Rosales, O.)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GEORGE AVALOS,
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Plaintiff,
v.
ORDER EXTENDING TIME FOR SERVICE
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ARMANDO AMADOR, et al.,
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Defendants.
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Case No. 1:21-cv-00281-DAD-EPG
(ECF NO. 13)
ORDER SETTING SCHEDULING
CONFERENCE ON SEPTEMBER 16, 2021,
AT 10:30 A.M.
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Plaintiff commenced this action on February 26, 2021, alleging violations of the
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Americans with Disabilities Act and the Unruh Civil Rights Act. (ECF No. 1). On April 7, 2021,
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with no Defendant having appeared in the case, Plaintiff filed a notice of settlement and request to
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vacate all currently set dates, stating that “a global settlement ha[d] been reached in the above-
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captioned case and the Parties would like to avoid any additional expense, and to further the
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interests of judicial economy.” (ECF No. 6). Accordingly, the Court entered a minute order,
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vacating any and all pending deadlines and hearings and directing the parties to file the
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appropriate dismissal documents no later than June 4, 2021. (ECF No. 7).
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On June 4, 2021, Plaintiff filed a notice of inability to consummate the settlement,
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requesting that the Court return the case to its active calendar. (ECF No. 8). As grounds, Plaintiff
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stated that, since the date of the settlement, “Plaintiff has worked with Defendant to finalize a
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written settlement agreement,” but “in recent months, Defendant has been difficult to contact and
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final settlement has been delayed as a result.” (Id. at 1).
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Given Plaintiff’s representations regarding the inability to finalize the settlement in this
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case, the Court entered an order returning the case to the active docket, setting a formal
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scheduling conference on July 20, 2021, requiring a joint scheduling report to be filed one week
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before the scheduling conference, and directing Plaintiff to promptly serve a copy of the order on
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the defendants and to file an appropriate proof of such service with the Court. (ECF No. 9).
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On June 15, 2021, Plaintiff requested (ECF No. 10), and the Clerk entered (ECF No. 11),
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a default against Defendant Armando Amador. However, no entry of default was requested as to
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the other Defendant in this case, Catherine Mellow. On July 14, 2021, the Court entered a minute
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order, noting that no joint scheduling report had been timely filed and no proof of service of this
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Court’s June 8, 2021 order had been filed. (ECF No. 12). Accordingly, the Court vacated the July
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20, 2021 scheduling conference, but required Plaintiff to file a status report by that same date,
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informing the Court of the status of this case and how Plaintiff planned to proceed.
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On July 14, 2021, Plaintiff filed a status report, stating that Plaintiff has been unable to
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contact Defendant Armando Amador to consummate a settlement agreement. (ECF No. 13). As to
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Defendant Catherine Mellow, Plaintiff states as follows: “Although Plaintiff made attempts to
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personally serve Defendant CATHERINE L MELLOW in March 2021, Plaintiff was
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unsuccessful. Since the case was returned to the active calendar, Plaintiff has been diligently
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attempting to personally serve Defendant CATHERINE L MELLOW once again.” Lastly the
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status report “requests a continuance of the Scheduling Conference and likewise an extension of
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time in which to file a Joint Scheduling Report” and states that “Plaintiff anticipates filing either a
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proof of service or a motion for service by publication within thirty (30) days.”
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As to Plaintiff’s request to continue the scheduling conference and extend the time to file
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a joint scheduling report, the Court need not rule on either request because it already vacated the
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conference (and thus the joint scheduling report requirement) in its July 14, 2021 order. (ECF No.
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12). However, the Court will set a new scheduling conference in this order. As to Plaintiff’s
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statement about “filing either a proof of service or a motion for service by publication within
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thirty (30) days,” the Court is uncertain whether Plaintiff is referring to filing a proof of service of
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the Court’s July 8, 2021 order, or filing proof of service as to Defendant Catherine Mellow being
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served with a summons and complaint, or both.
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If Plaintiff is requesting the former, the Court will grant Plaintiff an extension to file proof
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of service of this Court’s June 4, 2021 order on Defendants Armando Amador and Catherine
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Mellow. And assuming that Plaintiff is also requesting an extension of time to serve Defendant
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Catherine Mellow with a summons and the complaint, the Court must consider the requirements
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of Federal Rule of Civil Procedure 4(m), which provides as follows:
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If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff--must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
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Because the complaint was filed on February 26, 2021, the 90-day period for Plaintiff to
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serve Defendant Catherine Mellow has already expired. However, given Plaintiff’s
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representations about the efforts made to serve Defendant Catherine Mellow, the Court deems it
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appropriate to exercise its discretion to extend the time for Plaintiff to serve Defendant Catherine
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Mellow. See Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007) (noting that Rule 4(m)
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“permits the district court to grant an extension even in the absence of good cause”).
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Accordingly, IT IS ORDERED as follows:
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1. No later than August 20, 2021, Plaintiff shall serve a copy of the Court’s June 8, 2021
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order AND this instant order on both Defendants Armando Amador and Catherine
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Mellow or, if identified, on their counsel. Thereafter, Plaintiff shall file an appropriate
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proof of such service with the Court, in compliance with Rule 135 of the Local Rules for
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the Eastern District of California.
2. Also, no later than August 20, 2021, Plaintiff shall file proof of service of a summons and
the complaint on Defendant Catherine Mellow. See Fed. R. Civ. P. 4(l)(1).
3. Should Plaintiff seek an extension of either of these deadlines, Plaintiff is directed to file a
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motion before either deadline expires. See Fed. R. Civ. P. 7(b)(1) (“A request for a court
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order must be made by motion.”).
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4. Unless a notice or stipulation of dismissal has been filed under Federal Rule of Civil
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Procedure 41, all parties are required to attend a formal telephonic scheduling conference
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on September 16, 2021, at 10:30 a.m. before United States Magistrate Judge Erica P.
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Grosjean. To join the telephonic conference, each party shall dial 1-(888) 251-2909 and
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enter access code 1024453.
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5. A joint scheduling report, carefully prepared and executed by all counsel, shall be
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electronically filed in CM/ECF, one (1) full week prior to the scheduling conference and
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shall be emailed in Word format to epgorders@caed.uscourts.gov. The joint scheduling
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report shall indicate the date, time, and courtroom of the scheduling conference. This
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information is to be placed opposite the caption on the first page of the report.
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IT IS SO ORDERED.
Dated:
July 15, 2021
/s/
UNITED STATES MAGISTRATE JUDGE
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