The opinion of the court was delivered by: Susan Illston, United States District Judge
EX PARTE APPLICATION TO MODIFY THE ORDER DATED SEPTEMBER 29, 2008; DECLARATION OF PROPOSED AND ORDER
Defendant NATHAN NASH hereby submits the following Ex Parte Application to Modify the Order dated September 29, 2008. That order set a deadline for Defendant to file a Dispositive Motion, which has now expired prior to the appearance of Defendant NATHAN NASH in this case.
On September 29, 2008, this Court issued an Order stating: "No later than December 18, 2008, defendant must file and serve a motion for summary judgment or other dispositive motions." Order, dated 9/29/08 (Docket No. 5). This deadline was prefaced on service of summons and complaint which did not actually occur.
The filing of the Answer concurrently herewith is Defendant's first appearance in the action. On or about January 16, 2008, Porter Scott, a Professional Corporation, was retained as counsel for the Defendant NASH. (Declaration of John Whitefleet.). The deadline as issued by the court to file a motion for summary judgment expired prior to any appearance by Defendant. Plaintiff is a pro per litigant and the address provided by Plaintiff is believed to be associated with a shelter; as such, communication between the parties is severely hampered on shortened notice. Because of Plaintiff's pro se status and the recent retention of counsel, counsel for Defendant has not been able to contact Plaintiff in an effort to obtain a stipulation to modify the order.
Defendant submits that good cause exists to allow Defendant additional time to file his dispositive motion, if any, because the deadline has already expired prior to his appearance, the recent retention of counsel, and the limited time within which counsel has had to review the matter in order to respond to the Complaint by appropriate motion.
Defendant submits Plaintiff will not be penalized by an extension of time for Defendant to file a dispositive motion.
WHEREFORE, Defendant requests this Court modify its Order dated September 29, 2008, to allow Defendant to file dispositive motions up to and including April 3, 2009.
I, John R. Whitefleet, declare as follows:
1. I am an attorney at law, licensed to practice in and before all the courts of the State of California, including the United States District Court, Northern District of California, and am an associate with the professional corporation of Porter Scott, attorneys of record for Defendant NATHAN NASH in the above-entitled action.
2. Prior to any appearance by Defendant, the deadlines in the order of the court dated September 29, 2008, expired. On or about January 16, 2009, Porter Scott, A Professional Corporation, was retained as counsel for the above-named Defendant.
3. On behalf of Defendant, I request this Court modify its Order dated September 29, 2008 to extend the time for Defendant to file dispositive motions up to and including April 3, 2009.
I declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct, and if called to testify as a witness in this matter I can and will testify competently to the matters ...