Crosthwaite et al v. Aposhian Excavating Company, Inc.

Filing 14

ORDER granting 13 MOTION Plaintiffs Request For An Extension Of Time To Serve Defendant And Request To Continue Case Management Conference. Initial Case Management Conference set for 10/28/2013 01:30 PM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 05/30/2013. (tmi, COURT STAFF) (Filed on 5/30/2013)

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1 Michele R. Stafford, Esq. (SBN 172509) Shivani Nanda, Esq. (SBN 253891) 2 SALTZMAN & JOHNSON LAW CORPORATION 44 Montgomery Street, Suite 2110 3 San Francisco, CA 94104 (415) 882-7900 4 (415) 882-9287 – Facsimile mstafford@sjlawcorp.com 5 snanda@sjlawcorp.com 6 Attorneys for Plaintiffs 7 8 UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 F.G. CROSTHWAITE, et al., Case No.: C13-0363 TEH 11 PLAINTIFFS’ REQUEST FOR AN EXTENSION OF TIME TO SERVE DEFENDANT AND REQUEST TO CONTINUE CASE MANAGEMENT CONFERENCE; 12 Plaintiffs, v. 13 APOSHIAN EXCAVATING COMPANY, INC., a Utah Corporation, 14 Defendant. 15 16 17 [PROPOSED] ORDER THEREON Date: Time: Location: 18 19 Courtroom: Judge: 20 21 DECLARATION OF SHIVANI NANDA IN SUPPORT THEREOF; July 29, 2013 1:30 p.m. 450 Golden Gate Ave. San Francisco 12, 19th Floor, Honorable Thelton E. Henderson Pursuant to Rule 4 of the Federal Rules of Civil Procedure and Civil Local Rule 6-3, 22 Plaintiffs respectfully request that the Court issue an Order extending the time to accomplish 23 service of the Summons and Complaint on Defendant by approximately ninety (90) days, and that 24 the Case Management Conference scheduled for July 29, 2013 be continued for approximately 25 ninety to one hundred and twenty (90-120) days. Good cause exists for the granting of the 26 extension and continuance, as follows: 27 1. As the Court’s records will reflect, Plaintiffs filed a Complaint against Defendant 28 Aposhian Excavating Company, Inc., a Utah corporation, on January 25, 2013. -1PLAINTIFFS’ REQUESTS FOR EXTENSION AND CONTINUANCE; [PROPOSED] ORDER THEREON Case No.: C13-0363 TEH P:\CLIENTS\OE3CL\Aposhian Excavating\Pleadings\C13-363 TEH - Request for Extension to Serve 052813.docx 1 2. Plaintiffs subsequently discussed the complaint and a possible payment plan with 2 David Aposhian, President and Agent for Service of Process for Defendant. During those 3 discussions, Mr. Aposhian indicated that he would agree to acknowledge service of the Summons 4 and Complaint, and enter into a Judgment Pursuant to Stipulation (“Stipulation”) on behalf of 5 Defendant, and as an individual guarantor, for all amounts owed to Plaintiffs. On February 4, 2013, 6 Plaintiffs emailed and mailed Defendant, care of Mr. Aposhian, a Notice and Acknowledgment of 7 Receipt of the Summons and Complaint, as well as a draft Stipulation. 8 3. Although Mr. Aposhian received the documents, he has since refused to sign the 9 proposed Stipulation, and refused to acknowledge service of process. 10 4. As a result, on or about February 20, 2013, the Summons, Complaint and related 11 documents were provided to a process server with the instructions to serve the documents upon 12 Defendant. The process server made 6 attempts to serve Defendant at the address of record listed on 13 the Utah Secretary of State website, but to no avail. True and correct copies of Non-Service Reports 14 prepared by Plaintiffs’ process servers are attached hereto as Exhibit A, and incorporated by 15 reference. 16 5. Thereafter, Plaintiffs retained a private investigator to locate and personally serve 17 Defendant. The investigator advised Plaintiffs’ counsel that the address of record for Defendant 18 designated with the Utah Secretary of State for service of process was not accurate, as Mr. 19 Aposhian had relocated from that address some time ago. Plaintiffs’ investigator identified several 20 other potential addresses for Defendant, but was unable to confirm any of them, or otherwise locate 21 Defendant. 22 6. Although Plaintiffs have been diligent in their attempts to serve Defendant, personal 23 or substituted service could not be accomplished as Defendant. As a result, Plaintiffs anticipate 24 promptly filing a motion for leave to serve Defendant by publication. 25 7. Pursuant to Rule 4 of the Federal Rules of Civil Procedure, Plaintiffs have 120 days 26 from the date the Complaint was filed to serve Defendant. The time period to serve Defendant 27 expires today. However, Federal Rule 4(m) further provides that if a plaintiff shows good cause for 28 failure to timely serve a Defendant, the court must extend that time for service for an appropriate -2PLAINTIFFS’ REQUESTS FOR EXTENSION AND CONTINUANCE; [PROPOSED] ORDER THEREON Case No.: C13-0363 TEH P:\CLIENTS\OE3CL\Aposhian Excavating\Pleadings\C13-363 TEH - Request for Extension to Serve 052813.docx 1 period. 2 8. Plaintiffs respectfully request that the Court issue an Order extending the time for 3 service of the Complaint and Summons for a period of ninety (90) days to allow time for Plaintiffs 4 to prepare and file a motion to serve Defendant by publication, effectuate service, and file a Proof 5 of Service of Summons with the Court. 6 I declare under penalty of perjury under the laws of the United States of America that I am 7 the attorney for the Plaintiffs in the above entitled action, and that the foregoing is true of my own 8 knowledge. 9 Executed this 28th day of May, 2013, at San Francisco, California. 10 SALTZMAN & JOHNSON LAW CORPORATION 11 12 By: 13 /S/ Shivani Nanda Attorneys for Plaintiffs 14 IT IS SO ORDERED. 15 The time limit for service of the Complaint and Summons in this action is hereby extended 16 to __________, 2013. The currently set Case Management Conference is hereby continued to August 26 17 __________________________ at __________________, and all previously set deadlines and 1:30 p.m. October 28, 2013 18 dates related to this case are continued accordingly. S 24 R NIA FO LI H ER n enderso lton E. H he Judge T RT 23 NO 22 _________________________________________ HONORABLE THELTON E. HENDERSON UNITED STATES DISTRICT COURT JUDGE A 21 Date: ____________________ 05/30/2013 UNIT ED 20 RT U O 19 S DISTRICT TE C TA N F D IS T IC T O R C 25 26 27 28 -3PLAINTIFFS’ REQUESTS FOR EXTENSION AND CONTINUANCE; [PROPOSED] ORDER THEREON Case No.: C13-0363 TEH P:\CLIENTS\OE3CL\Aposhian Excavating\Pleadings\C13-363 TEH - Request for Extension to Serve 052813.docx

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