(PS) Hernandez v. Kaur

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 GERARDO HERNANDEZ, 2:22-cv-0181-KJM-KJN PS 12 Plaintiff, 13 v. ORDER 14 JASVIR KAUR d/b/a PARK-N-SAVE (ECF No. 15) LIQUOR, et al. [15] Defendants. [17] 18 Before the court is defendant Jasvir Kaur’s motion for an extension of time to respond to 19 plaintiff’s motion for default judgment.1 (ECF No. 15.) In January 2022, plaintiff filed this suit 20 asserting structural violations of the Americans with Disabilities Act (“ADA”) and related laws at 21 a store known as Park-N-Save Liquor, located at 3041 Rio Linda Boulevard in Sacramento, 22 California. (ECF No. 1.) In March 2022, at plaintiff’s request, the Clerk of Court entered default 23 against all defendants because they failed to respond to the complaint. (ECF Nos. 8, 9.) On 24 June 6, 2022, plaintiff filed his currently pending motion for default judgment against all three 25 remaining defendants—Jasvir Kaur, Dhiru Patel, and Kokila Patel—who are alleged to own and [26] 27 1 Because at least defendant Kaur is proceeding without an attorney, this case was referred to the undersigned Magistrate Judge for all pre-trial proceedings, pursuant to 28 U.S.C § 636(a) 28 and Local Rule 302(c)(21). (See ECF No. 17.) 1 operate the store.2 (ECF No. 13; see ECF No. 1 ¶ 7; ECF No. 13.1 at 2.) 2 On June 27, 2022, when defendants failed to file any timely opposition to the motion, the 3 undersigned issued a Minute Order vacating the hearing on the motion and granting defendants a 4 further opportunity to respond. (ECF No. 14.) The court ordered plaintiff to serve a copy of the 5 Minute Order on defendants at their last-known address and to file a proof of service. (Id.) 6 No such proof of service was filed by plaintiff, and on July 19, 2022 (the date of the 7 originally scheduled hearing), defendant Kaur filed the present motion, advising that Kaur and at 8 least one other defendant came to the courthouse that day for the hearing because they did not 9 receive a copy of the court’s Minute Order. (ECF No. 15, stating “[w]e came” to the hearing and 10 that the Clerk’s office then informed defendants of the Minute Order.) Defendant Kaur’s motion 11 requests an extension of time to respond to plaintiff’s motion for default judgment; and it also 12 simultaneously requests that the court accept the motion itself as a response to plaintiff’s motion. 13 (Id. at 1.) The motion states that on July 11, 2022, defendants received approval from the City of 14 Sacramento to proceed with building plans to bring the store property into compliance with the 15 ADA. (Id. at 1, attaching City development review documents.) Plaintiff has not filed a response 16 to this motion, which is the first appearance by any defendant in this case. 17 According to plaintiff’s motion and its attachments, defendant Kaur is the owner of the 18 Park-N-Save business, while defendants Dhiru Patel and Kokila Patel (a married couple) are 19 landlords who own the property on which it sits. (ECF No. 13.2 ¶¶ 14-15, 22.) It is unclear 20 whether defendant Kaur has any relationship with the Patel defendants beyond this business 21 relationship. The present motion for an extension of time is signed only by defendant Kaur, and 22 the Patel defendants have yet to appear in any capacity in this lawsuit, although they were served 23 at a residential address on Tres Piezas Drive where public records list them as the current owners. 24 (Id. ¶¶ 12, 16-18.) Presumably, however, one or both of the Patel defendants came to the 25 courthouse with defendant Kaur on July 19th in an effort to oppose the motion for default 26 judgment—albeit at the very last opportunity. [27] 2 A fourth defendant, Parmjit Singh, was voluntarily dismissed from the action in May 28 2022. 1 The court finds that the above circumstances provide good cause to grant defendants a 2 further extension of time to respond to plaintiff’s motion for default judgment. In addition, the 3 court is inclined to further construe defendant Kaur’s motion (ECF No. 15) as a motion to set 4 aside the Clerk’s entry of default at least as to defendant Kaur, and perhaps as to all three 5 defendants. 6 Under Federal Rule of Civil Procedure 55(c), the court may set aside the Clerk’s entry of 7 default for “good cause.” Fed. R. Civ. P. 55(c); see United States v. Signed Personal Check No. 8 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) (good cause factors for setting aside 9 default); O’Connor v. State of Nev., 27 F.3d 357, 364 (9th Cir. 1994) (district court has especially 10 broad discretion to set aside Clerk’s entry of default, as opposed to default judgment). 11 Defendant Kaur’s motion and its exhibits (ECF Nos. 15, 16) suggest that defendants are 12 attempting to remedy the violations asserted in plaintiff’s complaint and indicates that at least 13 defendant Kaur is prepared to defend this suit on the merits. Although the Patel defendants have 14 not independently responded to plaintiff’s motion or even appeared in the case, the court suspects 15 that may be because the Patels (wrongly) believed that defendant Kaur’s motion would apply to 16 all three of them. Defendants are hereby advised that, if they are representing themselves in this 17 lawsuit without the assistance of an attorney, each of them must individually sign any filing 18 submitted to the court in order for that filing to be attributed to them. This is because, in general, 19 non-lawyers may not represent anyone but themselves in court. 20 The court hereby GRANTS defendants an extension of time to file any further response to 21 plaintiff’s motion for default judgment. Within the deadline set below, defendants Dhiru and 22 Kokila Patel SHALL file with the court a written response (signed by both of them) advising 23 whether or not they intend to defend themselves in this lawsuit. Defendant Kaur may, but is not 24 required to, file a further response as well. 25 The court is inclined to order plaintiff, defendant Kaur, and the Patel defendants (if they 26 respond to this order) to participate in a court-assisted settlement conference and/or Voluntary 27 Dispute Resolution Program (“VDRP”), in order to avoid the potentially unnecessary time and 28 expense of litigating the motion for default judgment and any subsequent discovery and motion 1 || practice. See Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009) (“As a 2 || general rule, default judgments are disfavored; cases should be decided upon their merits 3 || whenever reasonably possible.”). 4 Within the deadline set below, plaintiff SHALL show cause why the court should not 5 || (A) construe defendant Kaur’s motion for an extension of time as a motion to set aside the Clerk’s 6 || entry of default against Kaur, and grant that motion; (B) do the same with respect to the Patel 7 || defendants; and (C) order whatever parties have appeared in the action to participate in a 8 | settlement conference and/or VDRP. If plaintiff does not object to this course of action, plaintiff 9 || SHALL by the same deadline file a stipulation to set aside the Clerk’s default against one or more 10 || defendants. 11 ORDER 12 Accordingly, it is HEREBY ORDERED that: 13 1. Defendant Jasvir Kaur’s motion for an extension of time (ECF No. 15) is GRANTED; 14 2. No later than September 30, 2022, defendants Dhiru Patel and Kokila Patel shall file a 15 written response advising whether or not they intend to defend themselves in this lawsuit; 16 3. No later than September 30, 2022, plaintiff shall respond to this order to show cause as 17 outlined above; and 18 4. In addition to the standard service of this order on defendant Kaur, the Clerk of Court is 19 instructed to also serve a copy of this order on defendants Dhiru Patel and Kokila Patel at 20 5648 Tres Piezas Drive, Sacramento, CA 95835. 21 || Dated: September 8, 2022 ” Aectl Aharon 23 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE [26] hemn.0181