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Johnson v. Redwood Nursery Inc.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 24, 2009

SCOTT N. JOHNSON, PLAINTIFF,
v.
REDWOOD NURSERY INC., INDIVIDUALLY AND DOING BUSINESS AS BRANCHES NURSERY AND DAEHLING RANCH, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, JR United States District Judge

EX PARTE APPLICATION FOR EXTENSION OF TIME FOR DEFENDANT REDWOOD NURSERY, INC. TO ANSWER OR OTHERWISE RESPOND TO COMPLAINT; ORDER Complaint Filed: May 13, 2009 Trial Date: TBD

I, Jennifer K. Achtert, hereby declare as follows:

1. I am Of Counsel to Fisher & Phillips LLP, attorneys of record for defendant Redwood Nursery, Inc., in this matter. I am licensed to practice law in the State of California and before this Court, and I am familiar with the pleadings and documents pertaining to the above-captioned lawsuit. I have personal knowledge of the facts stated in this declaration and, if called as a witness, could competently testify to these facts.

2. Pursuant to Local Rule 6-144(c), Defendant Redwood Nursery, Inc. ("Defendant Redwood"), submits its Ex Parte Application for Extension of Time to Answer or Otherwise Respond to Complaint, to provide Defendant Redwood with an extension of time of twenty- seven (27) days, until August 17, 2009, to submit its answer or other responsive pleading to Plaintiff's Complaint.

3. On May 13, 2009, Plaintiff filed his Complaint in this matter which contains claims arising under Title III of the Americans With Disabilities Act and California Law.

4. On or about June 22, 2009, Defendant Redwood was served with a copy of the Complaint and summons through service upon its registered agent. Defendant Redwood had until approximately July 13, 2009, to file its answer or other responsive pleading to the Complaint.

5. On July 14, 2009, Defendant Redwood retained the undersigned counsel.

6. On July 14 and 15, 2009, my firm, as counsel for Defendant Redwood, contacted Plaintiff to ascertain Plaintiff's willingness to enter into a stipulation providing Defendant Redwood with the requested extension to submit its answer or other responsive pleading.

7. To date, counsel for Defendant Redwood have not received a response to their request. There have therefore been no previous extensions obtained.

8. Defendant Redwood is currently investigating this matter and the requested extension will provide Defendant Redwood with an opportunity to complete its investigation and explore the possibility of settlement.

9. In addition, the owners of Defendant Redwood have filed for individual bankruptcy. Defendant Redwood also anticipates filing for bankruptcy and closing the nursery in the near future. The requested extension will provide Defendant Redwood with an opportunity to advise Plaintiff (and Defendant Daehling Ranch, LLC, which is assembling a cross-claim against Defendant Redwood) of its pending bankruptcy and to discuss its ramifications on the possible resolution of this matter.

10. This Ex Parte Application is not being submitted for the purpose of undue delay or for any improper purpose and, again, will provide the parties an opportunity to explore the possibility of an early settlement. In addition, this Application will not impact any existing 28 scheduling dates or prejudice any of the parties to this litigation.

11. WHEREFORE, Defendant, Redwood Nursery, Inc., respectfully submits its Ex Parte Application requesting an extension of time until August 17, 2009, to submit its answer or other responsive pleading to Plaintiff's Complaint.

I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Executed this 21st of July 2009, at San Francisco, California.

Jennifer K. Achtert

ORDER

This matter having come before the Court on Defendant Redwood Nursery, Inc.'s EX PARTE APPLICATION FOR EXTENSION OF TIME FOR DEFENDANT REDWOOD NURSERY TO ANSWER OR OTHERWISE RESPOND TO COMPLAINT, Defendant Redwood Nursery, Inc. shall have until August 17, 2009, to submit its answer or other responsive pleading to Plaintiff's Complaint.

IT IS SO ORDERED.

20090724

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