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Singh v. Bajwa

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 17, 2008

DHARAMPAL SINGH, JORINDER SINGH, PLAINTIFFS,
v.
KULBIR BAJWA, DEFENDANT.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER DISCHARGING ORDER TO SHOW CAUSE

ORDER VACATING SEPTEMBER 22, 2008 HEARING

ORDER REFERRING "MOTION TO QUASH" TO THE MAGISTRATE JUDGE

BACKGROUND

In this action, Plaintiffs sue Defendant for fraud. On August 15, 2008, the Clerk of the Court set this action for a hearing for dismissal for lack of prosecution. The parties were ordered to file any opposition to dismissal by September 15, 2008.

On August 26, 2008, Plaintiffs filed a request for entry of default. On August 29, 2008, the Clerk of the Court entered default against Defendant.

On September 11, 2008, Plaintiffs filed a response to the order to show cause. Plaintiffs state that they are preparing to file a motion for the entry of default judgment. Plaintiffs state that the delay in this action has been caused by their difficulties locating Defendant.

On September 11, 2008, Defendant filed a declaration entitled "motion to quash." Defendant claims that he has not been properly served with this action.

DISCUSSION

From the documents before the court, the court finds that Plaintiffs have not abandoned this action and are preparing documents in an attempt to conclude this action. As such, the court will discharge the order to show cause, and this action will not be dismissed at this time for Plaintiffs' failure to prosecute.

The court notes that Defendant has filed a "motion to quash," which the court construes as a motion to set aside the Clerk of the Court's entry of default. Defendant is advised that such a request must be made by noticed motion. The parties are also informed that in this court, both motions to set aside the Clerk of the Court's entry of default and motions for default judgment are heard before the assigned Magistrate Judge.

ORDER

In light of the parties' filings, the court ORDERS that:

1. The order to show cause is DISCHARGED;

2. The September 22, 2008 hearing is VACATED;

3. The pending motion to quash, which is construed as a motion to set aside default, is REFERRED to Magistrate Judge Gary Austin; and

4. The Clerk of the Court is DIRECTED to serve*fn1 a courtesy copy of this order on:

Kulbir Bajwa 3027 Chisam Road Sanger, Texas 76266

IT IS SO ORDERED.


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