Johnson v. Lababedy et al

Filing 27

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT JOHNSON, 12 13 14 15 16 17 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 18 Judgment Debtor Examination, indicating that he was never made aware of the default judgment 19 proceedings. This is an Americans with Disabilities Act (“ADA”) and Unruh Act case alleging 20 that defendants failed to provide accessible parking spaces, and accessible counter space, at a 21 Circle 7 establishment. 22 For the reasons stated below, the Judgment Debtor Examination will be vacated to be reset 23 in the future if necessary, and a status conference will be scheduled for February 22, 2017 at 24 10:00 a.m., before the undersigned. 25 I. BACKGROUND 26 On January 21, 2016, plaintiff filed his complaint. He asserts that he served it, with a 27 summons, on defendant on February 17, 2016. See ECF No. 7. On March 14, 2016, plaintiff 28 filed a Proof of Service / Summons and Complaint. ECF No. 7. The Proof attests that plaintiff 1 1 (through his “Registered California process server”), made nine (9) separate, unsuccessful 2 attempts to effect personal service of the summons and complaint on defendant at 8756 Royster 3 Ct., Elk Grove, Sacramento, CA 95624-3073, which is asserted to be defendant’s residence. See 4 ECF No. 7. On the last attempt, February 16, 2016 at 7:20 p.m., plaintiff asserts that he 5 personally served the process on a person at defendant’s residence who identified herself as 6 defendant’s wife. Id. The following day, plaintiff mailed the process to defendant’s residence, 7 according to the Proof of Service. Id. 8 9 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 10 Proof of Service having shown proper service on defendant under Rule 4(a)(1) and Cal. Code 11 Civ. Proc. § 415.20(b), the Clerk of the Court granted the default. ECF No. 9. On September 13, 12 2016, the court granted plaintiff’s Rule 55(b) motion for default judgment against defendant, and 13 entered judgment. ECF Nos. 17, 18. 14 15 II. JUDGMENT DEBTOR EXAMINATION On November 23, 2016, the undersigned ordered defendant to appear for a Judgment 16 Debtor Examination on January 18, 2017. ECF No. 23. Defendant appeared and was sworn, but 17 objected to the proceedings and requested a hearing before the undersigned. See ECF Nos. 25, 18 26. At the hearing, defendant indicated that the only document he ever received in the case, other 19 than the complaint, was the order to appear for the examination. He indicated that he did not 20 know about the default proceedings, and argued that it was unfair to require him to proceed with 21 the examination under these circumstances. 22 The undersigned explained to defendant that he was free to file a motion under “Rule 60” 23 of the Federal Rules of Civil Procedure, to obtain relief from the default judgment. He was 24 advised that it would be best to obtain help from an attorney in filing such a motion, if possible. 25 Defendant has indicated a willingness to file such a motion, and plaintiff has offered no objection 26 to a continuance to permit defendant to do so. 27 28 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 2 1 of the Motion for Default Judgment (ECF No. 13), the undersigned’s Findings and 2 Recommendations (ECF No. 16), and the court’s order granting default judgment (ECF No. 17). 3 III. CONCLUSION 4 5 For the reasons set forth above, IT IS HEREBY ORDERED that: 1. 6 7 VACATED, to be reset at a future time as necessary; 2. 8 9 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. 3. The Clerk of the Court is directed to serve a copy of this order on defendant Hakmat 10 Lababedy at 8756 Royster Ct., Elk Grove, CA 95624-3073, and to add that 11 address to the docket and the service list as defendant Lababedy’s address. 12 DATED: January 18, 2017 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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