Roper v. Yanni

Filing 20

ORDER in Response to Plaintiff's Motions for Clarification (ECF Nos. 15 , 19 ). Defendant shall file and serve an answer or otherwise respond to the First Amended Complaint no later than 09/24/2018. If defendant does not file and serve an answ er or otherwise respond to the First Amended Complaint by 09/24/2018, a default and a default judgment may be entered against defendant under Federal Rule of Civil Procedure 55 at plaintiffs request. Signed by Magistrate Judge Karen S. Crawford on 09/07/2018. (All non-registered users served via U.S. Mail Service)(ajs)

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~-----------------~! FILED 1 SEP I 0 2018 2 CLERK.US OIST1<1(;1 COURT SOUTHERl)l.Ql~TR,CT Of 3 BY C.AclFORNIA (JI-{., DEPUTY 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 TIMOTHY ANDREW ROPER, 12 Plaintiff, 13 v. 14 PHILIP YANNI, Defendant. 15 Case No.: 18cv489-WQH(KSC) ORDER IN RESPONSE TO PLAINTIFF'S MOTIONS FOR CLARIFICATION [Doc. Nos. 15 and 19] 16 17 18 19 Before the Court are the following documents filed by plaintiff: ( 1) a Motion for 20 Clarification and Early Neutral Evaluation Conference [Doc. No. 15]; and (2) a Motion for 21 Clarification and Early Neutral Evaluation [Doc. No. 19]. In these Motions, plaintiff has 22 requested that the Court set an Early Neutral Evaluation Conference or expedite the case 23 m some way. 24 25 Background As background, plaintiff's original Complaint was filed on March 7, 2018. [Doc. 26 No. l]. A proof of service filed in the Court's record on March 19, 2018 indicates 27 defendant was served in the action on March 15, 2018. [Doc. No. 3.] On March 26, 28 2018, plaintiff filed a First Amended Complaint. [Doc. No. 4.] l 8cv489-WQH(KSC) 1 2 On April 11, 2018, defendant filed a Motion for Summary Judgment. [Doc. No. 3 8.] Federal Rule of Civil Procedure 56(b) states that "a party may file a motion for 4 summary judgment at any time until 30 days after the close of discovery." Fed.R.Civ.P. 5 56(b). The District Court denied defendant's Motion for Summary Judgment on July 26, 6 2018 but did not set a deadline for defendant to answer or otherwise respond to the First 7 Amended Complaint. [Doc. No. 13.] 8 Discussion 9 Based on a review of the Court's docket, it appears that defendant's Motion for 10 Summary Judgment was filed in lieu of an answer or one of the responsive motions 11 permitted under Federal Rule of Civil Procedure 12(b). Fed.R.Civ.P. 12(a)(l)(A)(i)&(ii); 12 Fed.R.Civ. P. 12(b)(l)-(6). Ifa defendant files a Rule 12(b) motion, Federal Rule 13 12(a)(4) "alters" the time for the defendant to file a responsive pleading. Rule 14 12(a)(4)(A) states as follows: "if the court denies the motion or postpones its disposition 15 until trial, the responsive pleading must be served within 14 day after notice of the court's 16 action ...." Fed.R.Civ.P. 12(a)(4)(A). The time to answer or otherwise respond is 17 unclear when the defendant files a Motion for Summary Judgment rather than an answer 18 or a Rule 12(b) motion. Fed.R.Civ.P. 12; Fed.R.Civ.P. 56. Under the circumstances 19 presented, it therefore appears appropriate for the Court to set a deadline for the 20 defendant to file an answer or otherwise respond to the First Amended Complaint. 21 Conclusion 22 Based on the foregoing, IT IS HEREBY ORDERED that defendant shall file and 23 serve an answer or otherwise respond to the First Amended Complaint no later than 24 September 24, 2018. If defendant does not file and serve an answer or otherwise respond 25 to the First Amended Complaint by September 24, 2018, a default and a default judgment 26 may be entered against defendant under Federal Rule of Civil Procedure 55 at plaintiffs 27 request. 28 III 2 l 8cv489-WQH(KSC) 1 Plaintiff is advised that the Court will set an Early Neutral Evaluation Conference 2 if the defendant files an answer. If the case does not settle at an Early Neutral Evaluation 3 Conference, the Court will set a Case Management Conference and other deadlines in the 4 case, including a deadline for the parties to participate in a Rule 26(f) Conference. 5 6 IT IS SO ORDERED. Dated: September 7 ,2018 7 8 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 18cv489-WQH(KSC)

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