GS Holistic, LLC v. Shinwar ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GS HOLISTIC, LLC, No. 2:23–cv–355–KJN 12 Plaintiff, ORDER 13 v. (ECF No. 7.) 14 SWAG SMOKES, 15 Defendant. 16 17 In this action initially filed on February 26, 2023, plaintiff alleges that defendant Swag 18 Smokes and a John Doe infringed on plaintiff’s trademarks. (ECF No. 1.) After Swag Smokes 19 failed to appear in the action, the Clerk of Court, upon plaintiff’s request, entered default against 20 Swag Smokes. (ECF Nos. 5, 6.) 21 Presently pending before the court is plaintiff’s motion to amend the complaint. (ECF No. 22 7.) Plaintiff avers it has discovered the true names of the defendants, and requests leave to file a 23 first amended complaint asserting the same allegations against the correct defendants.1 The 24 motion was noticed for an August 8, 2023 hearing, and (unsurprisingly) defendant did not 25 respond. The court finds this matter proper for resolution without a hearing. Local Rule 230(g). 26 27 1 This case was referred to the undersigned by operation of Appendix A sub. (m) of the court’s Local Rules. Orders granting amendment and lifting of an entry of default are within the 28 magistrate judge’s authority to issue, as they are non-dispositive matters. 1 Federal Rule of Civil Procedure 15(a)(2) states that a party may amend its pleading with 2 || the court’s leave, which should be freely given when Justice requires. Naming the correct 3 || defendants falls under this umbrella, and so plaintiff's motion is granted. 4 Further, given that service has yet to be perfected against the correct defendants, and in 5 || the interests of clarity, the court lifts the entry of default against defendant Swag Smokes. 6 || Mitchell v. Los Angeles Cmty. Coll. Dist., 861 F.2d 198, 202 (9th Cir. 1988) (noting the district 7 || court did not abuse its authority in lifting an entry of default against a defendant where that 8 | defendant had yet to be properly served with process). 9 ORDER 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. The Clerk’s entry of default (ECF No. 6) is SET ASIDE; 12 2. Plaintiff's motion to amend the complaint (ECF No. 7) is GRANTED; 13 3. Within 14 days of this order, plaintiff shall file the first amended complaint, and shall 14 thereafter effectuate service of process under Rule 4 of the Federal Rules of Civil 15 Procedure; and 16 4. The hearing on plaintiffs motion, currently set for August 8, 2023, is VACATED. 17 || Dated: July 17, 2023 i Aectl Aharon 19 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 20 gsho.355 21 22 23 24 25 26 27 28