Johnson v. Lababedy et al
Filing
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ORDER signed by Magistrate Judge Allison Claire on 1/18/17: Status Conference set for 2/22/2017 at 10:00 AM in Courtroom 26 (AC) before Magistrate Judge Allison Claire. Defendant is free to file a Rule 60 motion prior to that date. (Kaminski, H)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SCOTT JOHNSON,
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No. 2:16-cv-0126 KJM AC
Plaintiff,
v.
ORDER
HAKMAT LABABEDY; J & K ATWAL,
INC., a California Corporation; et al.,
Defendants.
Defendant Hakmat Lababedy (“defendant”) objects to proceeding with the scheduled
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Judgment Debtor Examination, indicating that he was never made aware of the default judgment
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proceedings. This is an Americans with Disabilities Act (“ADA”) and Unruh Act case alleging
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that defendants failed to provide accessible parking spaces, and accessible counter space, at a
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Circle 7 establishment.
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For the reasons stated below, the Judgment Debtor Examination will be vacated to be reset
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in the future if necessary, and a status conference will be scheduled for February 22, 2017 at
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10:00 a.m., before the undersigned.
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I. BACKGROUND
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On January 21, 2016, plaintiff filed his complaint. He asserts that he served it, with a
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summons, on defendant on February 17, 2016. See ECF No. 7. On March 14, 2016, plaintiff
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filed a Proof of Service / Summons and Complaint. ECF No. 7. The Proof attests that plaintiff
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(through his “Registered California process server”), made nine (9) separate, unsuccessful
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attempts to effect personal service of the summons and complaint on defendant at 8756 Royster
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Ct., Elk Grove, Sacramento, CA 95624-3073, which is asserted to be defendant’s residence. See
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ECF No. 7. On the last attempt, February 16, 2016 at 7:20 p.m., plaintiff asserts that he
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personally served the process on a person at defendant’s residence who identified herself as
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defendant’s wife. Id. The following day, plaintiff mailed the process to defendant’s residence,
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according to the Proof of Service. Id.
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When defendant failed to respond to the complaint, plaintiff requested that the Clerk of
the Court enter a default under Fed. R. Civ. P. (“Rule”) 55(a). ECF No. 8. The recitations of the
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Proof of Service having shown proper service on defendant under Rule 4(a)(1) and Cal. Code
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Civ. Proc. § 415.20(b), the Clerk of the Court granted the default. ECF No. 9. On September 13,
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2016, the court granted plaintiff’s Rule 55(b) motion for default judgment against defendant, and
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entered judgment. ECF Nos. 17, 18.
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II. JUDGMENT DEBTOR EXAMINATION
On November 23, 2016, the undersigned ordered defendant to appear for a Judgment
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Debtor Examination on January 18, 2017. ECF No. 23. Defendant appeared and was sworn, but
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objected to the proceedings and requested a hearing before the undersigned. See ECF Nos. 25,
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26. At the hearing, defendant indicated that the only document he ever received in the case, other
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than the complaint, was the order to appear for the examination. He indicated that he did not
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know about the default proceedings, and argued that it was unfair to require him to proceed with
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the examination under these circumstances.
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The undersigned explained to defendant that he was free to file a motion under “Rule 60”
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of the Federal Rules of Civil Procedure, to obtain relief from the default judgment. He was
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advised that it would be best to obtain help from an attorney in filing such a motion, if possible.
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Defendant has indicated a willingness to file such a motion, and plaintiff has offered no objection
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to a continuance to permit defendant to do so.
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The court advised the parties that they were free to meet and confer in an attempt to
resolve this matter. The court also directed plaintiff’s counsel to provide defendant with a copy
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of the Motion for Default Judgment (ECF No. 13), the undersigned’s Findings and
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Recommendations (ECF No. 16), and the court’s order granting default judgment (ECF No. 17).
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III. CONCLUSION
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For the reasons set forth above, IT IS HEREBY ORDERED that:
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VACATED, to be reset at a future time as necessary;
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The Judgment Debtor Examination, currently scheduled for January 18, 2017, is
This matter is SET for a Status Conference on February 22, 2017 at 10:00 a.m., before the
undersigned. Defendant is free to file a Rule 60 motion prior to that date.
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The Clerk of the Court is directed to serve a copy of this order on defendant Hakmat
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Lababedy at 8756 Royster Ct., Elk Grove, CA 95624-3073, and to add that
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address to the docket and the service list as defendant Lababedy’s address.
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DATED: January 18, 2017
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