1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAMELA BENNETT and JAMES Case No.: 22-cv-01426-WQH-BLM BENNETT, 12 ORDER Plaintiffs, 13 v. 14 CIELO HOMEOWNERS 15 ASSOCIATION, INC., THE JUDGE 16 LAW FIRM, JAMES JUDGE, and DOES 1-10, 17 Defendants. 18 19 HAYES, Judge: 20 The matters before the Court are (1) the Request for Entry of Default (ECF No. 7) 21 filed by Plaintiffs Pamela Bennett and James Bennett and (2) the Ex Parte Motion for 22 Extension of Time to Respond to Plaintiffs’ Complaint (ECF No.10) filed by Defendant 23 Cielo Homeowners Association (“Defendant Cielo”). 24 I. BACKGROUND 25 On September 21, 2022, Plaintiffs, proceeding pro se, filed a Complaint against 26 Defendants Cielo Homeowners Association, Inc., The Judge Law Firm, and James Judge, 27 bringing claims concerning a foreclosure lien. Plaintiffs request entry of default as to 28 1 Defendant Cielo, claiming at least twenty-one days have passed since the Summons and 2 Complaint were served on Defendant Cielo. (ECF No. 7 at 2–3.) 3 On October 24, 2022, Defendant Cielo filed an Ex Parte Motion for Extension of 4 Time to Respond to Plaintiffs’ Complaint. (ECF No. 10.) 5 On October 25, 2022, Plaintiff James Bennett filed an Affidavit in Response to 6 Defendant Cielo’s Ex Parte Motion for Extension of Time. (ECF No. 11.) 7 II. REQUEST FOR ENTRY OF DEFAULT 8 “When a party against whom a judgment for affirmative relief is sought has failed 9 to plead or otherwise defend,” then an entry of default is proper. Fed. R. Civ. P. 55(a). It is 10 inappropriate to conclude that a defendant has “failed to plead or otherwise defend” absent 11 a showing that a defendant has been adequately informed of the action. Accordingly, 12 plaintiffs “must show that [their] service of Defendants was sufficient before the entry of 13 default is proper.” Velazquez v. DEA Headquarters Unit (Saro), No. 11-CV-820 JLS 14 (NLS), 2012 WL 1898789, at *1 (S.D. Cal. May 22, 2012). “Without a proper basis for 15 jurisdiction, or in the absence of proper service of process, the district court has no power 16 to render any judgment against the defendant’s person or property unless the defendant has 17 consented to jurisdiction or waived the lack of process.” S.E.C. v. Ross, 504 F.3d 1130, 18 1138–39 (9th Cir. 2007); see Mason v. Genisco Tech. Corp., 960 F.2d 849, 851 (9th Cir. 19 1992) (“[I]f Genisco failed to serve Mason properly in the earlier action, the default 20 judgment is void.”). 21 Pursuant to Federal Rule of Civil Procedure 4(c)(2), “[a]ny person who is at least 18 22 years old and not a party may serve a summons and complaint.” Fed. R. Civ. P. 4(c)(2) 23 (emphasis added). Plaintiffs attach a proof of service stating that James Bennett—a party 24 to the action—served the Summons and Complaint on Defendant Cielo. (ECF No. 7 at 7– 25 8.) Plaintiffs have not complied with Rule 4(c)(2) and therefore have failed to properly 26 serve Defendant Cielo. In the absence of proper service, Plaintiffs’ request for entry of 27 default is denied. 28 1 Generally, a complaint must be served within ninety days after the complaint is filed. 2 Fed. R. Civ. P(m); S.D. Cal. CivLR 4.1(a). In this case, Plaintiffs filed their Complaint on 3 September 21, 2022, and thus have until December 20, 2022 to properly serve Defendants 4 in accordance with the requirements of Rule 4. 5 III. EX PARTE MOTION FOR EXTENSION OF TIME 6 In Defendant Cielo’s Ex Parte Motion for Extension of Time to Respond to 7 Plaintiffs’ Complaint, Defendant Cielo states that Cielo’s counsel was first contacted and 8 retained on October 24, 2022, the Complaint relates to another case in this district that is 9 currently on appeal, the Complaint is 192 pages with exhibits, and Cielo and its Counsel 10 need additional time to properly and efficiently respond to the Complaint.1 (ECF No. 10 at 11 2.) Defendant Cielo contends that on October 24, 2022, counsel for Cielo contacted 12 Plaintiff Pamela Bennett and left a voicemail for her stating that Cielo needed more time 13 to respond to the Complaint. Id. Defendant Cielo’s counsel also sent an email to Plaintiffs 14 on October 24, 2022, asking whether they would be willing to stipulate to additional time 15 for Defendant Cielo to respond given the circumstances. Id. Defendant Cielo contends that 16 they attempted to meet and confer before filing the Motion, but they had not heard back 17 from either Plaintiff. Id. 18 In Plaintiff James Bennett’s Affidavit in Response to Defendant Cielo’s Ex Parte 19 Motion Requesting Extension of Time, Plaintiff James Bennett states that Plaintiffs “did 20 not receive Defendant Cielo’s request for Plaintiffs’ position on a request[] for an extension 21 of time to file a response to Plaintiffs’ Complaint until after Defendant filed their Ex Parte 22 Motion.” (ECF No. 11 at 2.) Plaintiff James Bennett states that if they had received the 23 request, “Plaintiffs would have informed the Defendant that they have no position on 24 Defendant’s request and would leave that to the Court’s sound discretion.” Id. 25 26 27 1 Defendant Cielo contends these factors also support denial of Plaintiffs’ Request for Entry of Clerk Default. However, for the reasons stated above, the Court concludes entry of default is improper on 28 l Pursuant to Civil Local Rule 12.1, an extension of time to respond to a complaint 2 ||may be granted upon a “showing of good cause.” S.D. Cal. CivLR 12.1. The Court finds 3 || Defendant Cielo has shown good cause. Defendant Cielo’s Ex Parte Motion for Extension 4 ||of Time is granted. 5 CONCLUSION 6 IT IS HEREBY ORDERED that Plaintiffs’ Request for Entry of Clerk Default (ECF 7 || No. 7) is denied and Defendant Cielo’s Ex Parte Motion for Extension of Time (ECF No. 8 is granted. Defendant Cielo shall respond to Plaintiffs’ Complaint on or before 9 || November 10, 2022. 10 Dated: November 3, 2022 itt Z. Ma 11 Hon. William Q. Hayes 2 United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28