Ray v. Leal et al

Filing 25

ORDER by Judge Yvonne Gonzalez Rogers denying 22 Plaintiff's Motion for Default Judgment; and granting served Defendants' Ex Parte Request for an Extension of Time to file Dispositive Motion. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 1/3/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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v.
A. LEAL, et al.,
Defendants.

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United States District Court
For the Northern District of California

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ORDER DENYING PLAINTIFF'S
MOTION FOR DEFAULT JUDGMENT;
AND GRANTING SERVED
DEFENDANTS' EX PARTE REQUEST
FOR AN EXTENSION OF TIME TO FILE
A DISPOSITIVE MOTION

Plaintiff,

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No. C 11-05550 YGR (PR)

EDWARD VINCENT RAY, JR.,

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Plaintiff has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, complaining that
he was subjected to improper force during the course of his arrest. In its Order dated February 19,
2013, the Court reviewed the complaint and found Plaintiff's allegations stated cognizable claims for
relief against Defendants Oakland Police Officers A. Leal, Francis, and M. Ziebrath. In that same
Order, the Court ordered the complaint served on those Defendants and directed them to file an
answer, and no later than ninety-one days from the date of their answer was due, "a motion for
summary judgment or other dispositive motion" with respect to Plaintiff's cognizable claims, or to
inform the Court if Defendants were of the opinion that the case could not be so resolved. (Feb. 19,
2013 Order at 4.)
On June 26, 2013, Defendants Leal and Ziebrath filed their answer.1
Defendants Leal's and Ziebrath's motion for summary judgment was due on September 25,
2013. However, to date, these Defendants have not filed their motion for summary judgment.
Instead, their attorney has filed a letter dated December 12, 2013 "apologiz[ing] for [their] failure to
file a dispositive motion within the time prescribed by the Court." (Docket No. 23.) Their attorney
further explains that the "oversight resulted from an inadvertent failure to calendar this deadline."
(Id.) Therefore, these Defendants have requested an extension of time in which to file their motion

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To date, Defendant Francis has not been served in this action because he is no longer
working for the City of Oakland. (Docket No. 23.) In a separate written Order, the Court has
directed Plaintiff to provide a current address for Defendant Francis within a twenty-eight-day
deadline or face dismissal of all claims against this Defendants pursuant to Federal Rule of Civil
Procedure 4(m).

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for summary judgment up to and including February 7, 2014. (Id.) Thus, the Court construes their

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letter as an ex parte motion for extension of time to file their dispositive motion.

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Also before the Court is Plaintiff's "Motion for Default Judgment By Court to Defendants

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Who [Have] Appeared in this Action." (Docket No. 22.) A default judgment cannot be entered

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unless there is first a default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure.2 No

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such default has been requested or entered. Accordingly, Plaintiff's motion for default judgment

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(Docket No. 22.) is DENIED.

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Meanwhile, Because the served Defendants' attorney admits that she missed the dispositive

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motion deadline because of an inadvertent calendar error, the Court has finds that one extension of

United States District Court
For the Northern District of California

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time is warranted. Accordingly, having read and considered Defendants Leal's and Ziebrath's ex

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parte request and good cause appearing,

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IT IS HEREBY ORDERED that these Defendants' ex parte request for an extension of time

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is GRANTED. The time in which Defendants Leal and Ziebrath may file their motion for summary

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judgment will be extended up to and including February 7, 2014. Plaintiff's opposition to the

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dispositive motion shall be filed with the Court and served on these Defendants no later than sixty-

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three (63) days after the date their motion is filed. These Defendants shall file a reply brief no later

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than twenty-eight (28) days after the date Plaintiff's opposition is filed.

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If Defendants Leal and Ziebrath fail to file their dispositive motion by the new deadline, the

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Court may consider the imposition of monetary sanctions. No further extensions of time will be

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granted in this case absent exigent circumstances.

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This Order terminates Docket Nos. 22 and 23.

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IT IS SO ORDERED.

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DATED:

January 3, 2014
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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There is a distinction between a "default," which ordinarily is entered by the Clerk of the
Court pursuant to Rule 55(a), although it may be ordered by the Court, Breur Elec. Mfg. v. Toronado
Sys., 687 F.2d 182, 185 (7th Cir. 1982), and a "default judgment," which is entered by the Court
pursuant to Rule 55(b). In a case such as this, where the amount of damages is not a sum certain,
before entering a default judgment the Court would hold a hearing and take evidence as to the
amount of damages. See Fed. R.Civ.P. 55(b)(2).
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