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Ress Financial Corp. v. Lyles

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 29, 2008

RESS FINANCIAL CORPORATION, PLAINTIFF,
v.
WILLIAM LYLES, ET AL. DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING IN PART EX PARTE APPLICATION OF THE UNITED STATES

On December 22, 2008 the United States removed this action from State court pursuant to 28 U.S.C. § 1444. Concurrently it filed an Ex Parte Application for Extension of Time to Respond to Complaint. For the reasons which follow, the application is GRANTED IN PART.

The government requests an extension of time until February 16, 2009. It argues that it has not been properly served and that the time should be extended because in actions originally filed in the district courts of the United States, the time for the United States to respond is sixty days after service on the United States attorney. Fed. R. Civ. Proc. 12(a)(2).

Rule 81(c) sets the time to respond to complaint after removal. The time to respond is not necessarily dependent on proper service, but is set forth as follows:

A defendant who did not answer before removal must answer or present other defenses or objections under these rules within the longest of these periods:

(A) 20 days after receiving -- through service or otherwise -- a copy of the initial pleading stating the claim for relief;

(B) 20 days after being served with the summons for an initial pleading on file at the time of service; or

(C) 5 days after the notice of removal is filed.

Fed. R. Civ. Proc. 81(c) (emphasis added).

Accordingly, the time to respond is set irrespective of the service of process on the removing party. An extension of time can be granted pursuant to Rule 6(b)(1)(A), which requires a showing of good cause. Other than the assertion that the government has not been served and the entitlement to sixty days in actions filed in federal court, the government does not indicate why the requested extension is needed or otherwise attempt to show good cause.

Although the government has failed to show good cause as required by Rule 6(b)(1)(A), the time to respond is hereby extended in the interests of justice. Accordingly, the United States shall file an answer or otherwise respond to the complaint no later than January 12, 2009.

IT IS SO ORDERED.

20081229

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