(PC) Solis v. Fresno County Sheriff's Department ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ADALBERTO SOLIS, Case No. 1:20-cv-00048-AWI-EPG (PC) 11 Plaintiff, ORDER GRANTING DEFENDANT’S REQUEST FOR EXTENSION OF TIME TO 12 v. FILE REPSONSIVE PLEADING AND VACATING PLAINTIFF’S DEADLINE TO 13 PORTILLO, FILE REQUEST FOR ENTRY OF DEFAULT 14 Defendant. (ECF Nos. 22 & 23) 15 16 Adalberto Solis (“Plaintiff”) is a former prisoner proceeding pro se and in forma 17 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 18 Defendant executed a waiver of service of summons (ECF No. 20), but failed to file a 19 responsive pleading within the time period laid out in the waiver. 20 Accordingly, on March 29, 2021, the Court gave Plaintiff fourteen days to file a request 21 for entry of default. (ECF No. 22). The Court also directed the Clerk of Court to send a copy 22 of the order to County Counsel Daniel C. Cederborg. (Id. at 2). 23 On April 6, 2021, Defendant filed a request for an extension of time to file his 24 responsive pleading, or, in the alternative, a request to set-aside the entry of default. (ECF No. 25 23). “Defendant through County Counsel’s Office [] requests an extension 26 of time to finalize details of his representation, review the Complaint and other relevant 27 documents, and to prepare and file a responsive pleading on Defendant’s behalf in this matter, 28 for a minimum of 45 days.” (Id. at 4). ——_—_——— III IIE II RIE II IIIS IRIE III III IIS SENS 1 According to defense counsel, it was Defendant’s “understanding and belief, after a 2 || conversation with his union representative,” that, after signing and returning the waiver of 3 ||summons, “no further action on his part was required in response to the complaint. He 4 || believed, albeit incorrectly, that the Fresno County Counsel’s Office and the Fresno County Jail 5 || would receive notice of the pending action from the U.S. Marshal.” (ld. at 2).! 6 “This matter has only just begun, and Defendant does not believe and can see no 7 || prejudice to Plaintiff in this matter due to the Court granting this brief request. Defendant 8 || contends the interests of justice are served under the circumstances presented, and by having 9 || the matter considered on its merits.” (Id. at 4). 10 As default has not been entered, there is no need to set it aside. As to Defendant’s 11 request for an extension of time to file his responsive pleading, the Court will grant it, and 12 || Defendant will be given forty-five days to file his responsive pleading. See, e.g., Pena v. 13 || Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985) (“[D]efault judgments are 14 || generally disfavored. Whenever it is reasonably possible, cases should be decided upon their 15 || merits.”). 16 As the Court is granting Defendant’s request for an extension of time to file his 17 ||responsive pleading, it will also vacate Plaintiff's deadline to file a request for entry of default. 18 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 19 1. Defendant has forty-five days from the date of service of this order to file his 20 responsive pleading; and 21 2. Plaintiff's deadline to file a request for entry of default is vacated. 22 53 IT IS SO ORDERED. 24 |! Dated: _ April 6, 2021 [sf hey □□ 25 UNITED STATES MAGISTRATE JUDGE 26 27 28 | A declaration from Defendant in support of the request is attached.