Acosta v. Martinez. ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JOSE ACOSTA, Case No. 1:19-cv-00307-AWI-EPG 10 Plaintiff, ORDER HOLDING MOTION FOR DEFAULT JUDGMENT IN ABEYANCE UNTIL 11 v. JANUARY 8, 2020, AND DIRECTING DEFENDANT MARIA MARTINEZ A/K/A 12 MARIA MARTINEZ, et al., MARIA LOURDES MARTINEZ VASQUEZ 13 Defendants. D/B/A ACCESORIOS MARTINEZ TO FILE RESPONSE TO PLAINTIFF’S COMPLAINT 14 ON OR BEFORE JANUARY 8, 2020. 15 (ECF NO. 16) 16 17 On March 5, 2019, Plaintiff Jose Acosta (“Plaintiff”) filed this suit against Defendants 18 Maria Martinez a/k/a Maria Lourdes Martinez Vasquez d/b/a Accesorios Martinez (“Martinez”) 19 and TBS Properties, Inc. (“TBS”) for alleged violations under the Americans with Disabilities 20 Act, 42 U.S.C. §§ 12101 et seq. (“ADA”) and related California statutes. (ECF No. 1.) Neither 21 Martinez nor TBS has filed any response to the Complaint. 22 On June 7, 2019, Plaintiff filed a motion for default judgment against Martinez and TBS. 23 (ECF No. 9.) The Court held a hearing on the motion on July 12, 2019. Martinez personally 24 appeared at the hearing and indicated that she wished to contest Plaintiff’s Complaint. Plaintiff’s 25 counsel agreed to withdraw Plaintiff’s motion for default judgment against Martinez to allow her 26 time to respond to the Complaint. 27 Accordingly, on July 19, 2019, the Court issued an order: (1) granting Plaintiff’s motion 28 1 to withdraw his motion for a default judgment as to Martinez, (2) deferring ruling on Plaintiff’s 2 motion for default judgment as to TBS, and (3) directing the Clerk of Court to vacate the entry of 3 default against Martinez. (ECF No. 16.) The Court further ordered Martinez to file responsive 4 pleadings no later than September 13, 2019, and provided with her excerpts of the pertinent 5 federal rules dealing with responsive pleadings and pleading requirements in general— 6 specifically Federal Rules of Civil Procedure 8 and 12. 7 Martinez failed to file responsive pleadings by September 13, 2019. Plaintiff then filed a 8 second motion for default judgment against Martinez and TBS on October 2, 2019. (ECF No. 16.) 9 The Court held a hearing on the motion on November 8, 2019. Tanya Moore appeared 10 telephonically on behalf of Plaintiff. Defendant Martinez appeared personally and participated in 11 the hearing with the assistance of her daughter, as Martinez does not speak English. 12 Martinez explained that she attempted to retain the services of an attorney to respond to 13 Plaintiff’s Complaint, or at least to speak with Plaintiff’s counsel about resolution of the matter. 14 She stated that a lawyer tried to reach defense counsel but could not reach him. The Court notes 15 that previous defense counsel, Zachary Best, is no longer with the firm representing Plaintiff. 16 Martinez asked for additional time to allow her to continue to attempt to retain the attorney or 17 speak directly with Plaintiff’s counsel about the Complaint and pending motion for default 18 judgment. 19 Counsel for Plaintiff, Ms. Moore, provided her contact information to Martinez and spoke 20 to her in Spanish about how to reach her. 21 The Court also noted that Plaintiff failed to seek another entry of default from the Clerk of 22 Court against Martinez after the Court vacated the previous entry of default following the July 12, 23 2019 hearing. Under Ninth Circuit precedent and Federal Rule of Civil Procedure 55, an entry of 24 default must precede a default judgment. See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 25 1986) (noting that Rule 55 requires a two-step process before entering a default judgment 26 consisting of (1) seeking the clerk’s entry of default, and (2) filing a motion for entry of default 27 judgment). 28 1 Accordingly, based on the foregoing, at the conclusion of the hearing, the Court explained 2 that it would wait 60 days to rule on the motion to allow Martinez time to consult an attorney and 3 to file responsive pleadings if necessary and to allow Plaintiff time to seek another entry of 4 default against Martinez. 5 Thus, the Court will hold Plaintiff’s Motion for Default Judgment (ECF No. 16.) in 6 abeyance for 60 days until January 8, 2020. In this 60-day time frame, Martinez, or her lawyer if 7 she retains one, should call counsel for Plaintiff, Tayna Moore, at 408-298-2000, to discuss 8 Plaintiff’s Complaint (ECF No. 1.) and Plaintiff’s pending Motion for Default Judgment. In this 9 60-day time frame, unless Plaintiff and Martinez reach a resolution of the case, Martinez must 10 also file a response to Plaintiff’s Complaint. The Court again refers Martinez to Federal Rules of 11 Civil Procedure 8 and 12. 12 Accordingly, based on the foregoing, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s Motion for Default Judgment (ECF No. 16.) is held in abeyance for 60 days 14 until January 8, 2020, at which time the Court will take the motion under 15 consideration. In the interim, Martinez, or her attorney, is encouraged to consult with 16 attorney for Plaintiff, Tanya Moore, regarding Plaintiff’s Complaint and pending 17 Motion for Default Judgment. 18 2. To the extent the parties are unable to resolve the matter, Martinez is ordered to file 19 responsive pleadings to Plaintiff’s Complaint on or before January 8, 2020. 20 3. Martinez is warned that her failure to file responsive pleadings on or before January 21 8, 2020 could lead to the undersigned recommending that Plaintiff’s Motion for a 22 Default Judgment be granted and that all forms of relief sought therein be awarded to 23 Plaintiff. 24 4. Plaintiff shall seek an entry of default against Martinez by January 8, 2020, to the 25 extent he wishes to obtain a default judgment against her. 26 \\\ 27 \\\ 28 1 5. The Clerk of Court is directed to mail a copy of this order to Maria Lourdes Martinez 2 Vasquez d/b/a Accesorios Martinez at 108 S. Chestnut Avenue Fresno, CA 93702. 3 4 IT IS SO ORDERED. 5} Dated: _ November 13, 2019 [sf ey — 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28