McCain v. California Highway Patrol et al

Filing 65

ORDER signed by Magistrate Judge Kendall J. Newman on 10/3/2011 ORDERING 64 Status Conference set for 12/1/2011 at 10:00 AM in Courtroom 25 (KJN) before Magistrate Judge Kendall J. Newman; the parties shall file status reports, or a joint status re port if possible, no later than 14 days prior to the status (pretrial scheduling) conference; Discovery in this case is STAYED until after the 12/1/2011 status conference; pltf's requests for the entry of default against dfts Mike's Towing Service, Inc. and Michael Olivarez Dkt. # 54 , 55 are DENIED. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERRYLYN MCCAIN,

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Plaintiff,

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No. 2:11-cv-01265 KJM KJN PS

v.
CALIFORNIA HIGHWAY PATROL,
et al.,

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Defendants.
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ORDER
/

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A status (pretrial scheduling) conference was set to take place on October 6,

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2011.1 Defendants Mike’s Towing Service, Inc. and Michael Olivarez (“Towing Defendants”)

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filed a separate status report (Dkt. No. 62). Neither plaintiff nor defendant California Highway

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Patrol (“CHP”) filed a status report. Defaulted defendants Brent Mangham and Michael Walling

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did not file status reports, but filed a motion to set aside the Clerk’s entry of default that is set to

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be heard by the undersigned on October 27, 2011 (Dkt. No. 58). Because two sets of proposed

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findings and recommendations are pending before the district judge assigned to this case (Dkt.

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Nos. 38, 52), and the motion to set aside an entry of default is pending before the undersigned,

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there is uncertainty regarding the actual claims and defendants that will remain in this action.

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This case proceeds before the undersigned pursuant to Eastern District of California Local
Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
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Accordingly, the undersigned vacated the October 6, 2011 status conference. (See Minute Order,

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Oct. 3, 2011, Dkt. No. 64.) By this order, the undersigned sets a follow-up status conference and

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stays discovery in this case until after the follow-up status conference.

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For the sake of clarity, the undersigned details the matters that are presently

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pending before the court, and also resolves a pending request for entry of default recently filed by

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plaintiff. First, on August 4, 2011, the undersigned recommended that the CHP’s motion to

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dismiss be granted and that the CHP be dismissed from this case with prejudice. (See Order and

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Findings and Recommendations, Aug. 4, 2011, Dkt. No. 38.) Plaintiff filed objections to the

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proposed findings and recommendations (Dkt. No. 47). These proposed findings and

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recommendations have not yet been resolved.

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Second, on June 9, 2011, plaintiff requested that default be entered against

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defendants Mangham and Walling, and the Clerk of Court entered those defendants’ default

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(Dkt. Nos. 12-14). Plaintiff did not file a motion for a default judgment against Mangham and

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Walling. On September 16, 2011, Mangham and Walling filed a motion to set aside the entry of

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default on the grounds that Mangham and Walling were not properly served with process (Dkt.

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No. 58). That motion is set to be heard on October 27, 2011.

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Third, on August 26, 2011, the undersigned entered findings and

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recommendations granting the Towing Defendants’ motion to dismiss in part and denying it in

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part. (See Order and Findings and Recommendations, Aug. 26, 2011, Dkt. No. 52.) Plaintiff

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filed objections to the proposed findings and recommendations, and the Towing Defendants filed

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a response to those objections (Dkt. Nos. 53, 59). These proposed findings and

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recommendations have not yet been resolved.

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Meanwhile, on September 12, 2011, plaintiff requested that the Clerk of Court

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enter default against the Towing Defendants, apparently because the Towing Defendants did not

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file an answer regarding the claims for which dismissal was not recommended (Dkt. Nos. 54-

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55).2 The Towing Defendants have opposed the entry of default, arguing, in part, that the

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findings and recommendations should be resolved before they are required to file an answer

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(Dkt. No. 61). The undersigned agrees with the Towing Defendants and denies plaintiff’s

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requests for the entry of default.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

A status (pretrial scheduling) conference shall be conducted by the

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undersigned on December 1, 2011. The parties shall file status reports, or a joint status report if

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possible, no later than 14 days prior to the status (pretrial scheduling) conference. (See also

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Order Setting Status Conference at 2-3 (stating the requirements of a status report), Dkt. No. 3.)

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2.

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Towing Service, Inc. and Michael Olivarez (Dkt. Nos. 54, 55) are denied.

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Plaintiff’s requests for the entry of default against defendants Mike’s

conference.

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Discovery in this case is stayed until after the December 1, 2011 status

IT IS SO ORDERED.
DATED: October 3, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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The Towing Defendants filed an answer on September 24, 2011, despite the pending
findings and recommendations (Dkt. No. 60).
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