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Johnson v. City of San Diego

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 18, 2009

KARL PHILIP JOHNSON, PLAINTIFF,
v.
CITY OF SAN DIEGO, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hayes, Judge

ORDER

On May 19, 2008, Plaintiff initiated this action by filing the Complaint (Doc. # 1). On January 5, 2009, this Court issued an order requiring Plaintiff to file either (1) proof that service of the summons and complaint was timely effectuated, or (2) a declaration showing good cause for failure to timely serve the Defendants with the summons and complaint accompanied by a motion for leave to serve process outside of the 120 day period (Doc. # 4). On January 30, 2009, Plaintiff filed the Ex Parte Motion for Leave to Service Process Outside the 120 Day Period ("Ex Parte Motion") (Doc. # 5). Plaintiff requests that "good cause be found" and that the Court "allow a brief period of time to effectuate service on the named defendants." Id. at 6. In support of the Ex Parte Motion, Plaintiff submitted the declaration of his attorney, Ronald J. Higgens. Higgens attests that "a number of situations occurred in 2008 that seriously handicapped, and to a great extent debilitated me," including Higgens' elderly mother sustaining a broken hip, Higgens' youngest brother being diagnosed with cancer, and Higgens being engaged in "back-to-back serious felony criminal trials." Higgens Decl., ¶ 2. Higgens attests that "[i]t is my belief that the foregoing rises above the level of excusable neglect and constitutes good cause." Id., ¶ 3. In light of the Ex Parte Motion and Higgens' supporting declaration, the Court concludes that Plaintiff has shown good cause for failure to timely serve the Defendants within the 120 day period.

IT IS HEREBY ORDERED that the Ex Parte Motion for Leave to Serve Process Outside the 120 Day Period (Doc. # 5) is GRANTED. Plaintiff shall file proof that service of the summons and complaint was effectuated on or before Monday, March 23, 2009.

WILLIAM Q. HAYES United States District Judge

20090218

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