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Johnson v. D.G. Smith Enterprises

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 25, 2010

SCOTT N. JOHNSON, PLAINTIFF,
v.
D.G. SMITH ENTERPRISES, INC., ET AL., DEFENDANTS.

EX PARTE APPLICATION FOR EXTENSION OF TIME FOR DEFENDANTS TO ANSWER OR OTHERWISE RESPOND TO COMPLAINT; ORDER Complaint Filed: November 17, 2009 17 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 D.G. Smith Enterprises, Inc., individually and d/b/a Taco Bell; David G. Smith, individually and d/b/a Taco Bell; Keith Sherman, individually and d/b/a Taco Bell; and Keith Sherman Enterprises, Inc. ("Defendants"), 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 144(c), Defendants submit their Ex Parte Application for Extension of Time to Answer or Otherwise Respond to Complaint, to provide Defendants with an extension of time until February 23, 2010, to submit their answer or other responsive pleading to Plaintiff's Complaint.

3. On November 17, 2009, Plaintiff filed his Complaint in this matter which contains claims arising under Title III of the federal Americans With Disabilities Act and California Law.

4. On or about December 29, 2010, Defendants D.G. Smith Enterprises, Inc. Individually and d/b/a Taco Bell, and David G. Smith Individually and d/b/a Taco Bell were served with a copy of the Complaint and summons; assuming service was proper Defendants D.G. Smith Enterprises, Inc. Individually and d/b/a Taco Bell, David G. Smith Individually and d/b/a Taco Bell had until approximately January 19, 2010, to file their answer or other responsive pleading to the Complaint.

5. On or about January 5, 2010, Defendants Keith Sherman Individually and d/b/a Taco Bell, and Keith Sherman Enterprises, Inc. were served with a copy of the Complaint and summons; Defendants Keith Sherman Individually and d/b/a Taco Bell, and Keith Sherman Enterprises, Inc. have until approximately January 25, 2010, to file their answer or other 16 responsive pleading to the Complaint.

6. On January 21, 2010, my firm, as counsel for Defendants, contacted Plaintiff to ascertain Plaintiff's willingness to enter into a stipulation providing Defendants with the requested extension to submit their answer or other responsive pleading.

7. To date, counsel for Defendants has not received a response to the request. There have therefore been no previous extensions obtained.

8. Defendants are currently investigating this matter and the requested extension will provide Defendants with an opportunity to complete their investigation and explore the possibility of settlement.

9. 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 Ex Parte Application will not impact any existing scheduling dates or prejudice any of the parties to this litigation.

10. WHEREFORE, Defendants D.G. Smith Enterprises, Inc. Individually and d/b/a Taco Bell, David G. Smith Individually and d/b/a Taco Bell, Keith Sherman Individually and d/b/a Taco Bell, and Keith Sherman Enterprises, Inc, respectfully submit their Ex Parte Application requesting an extension of time until February 23, 2010, to submit their 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 22nd of January 2010, at San Francisco, California.

ORDER

This matter having come before the Court on Defendants' EX PARTE APPLICATION FOR EXTENSION OF TIME FOR DEFENDANTS D.G. SMITH ENTERPRISES, INC., INDIVIDUALLY AND D/B/A TACO BELL; DAVID G. SMITH, INDIVIDUALLY AND D/B/A TACO BELL; KEITH SHERMAN, INDIVIDUALLY AND D/B/A TACO BELL; AND KEITH SHERMAN ENTERPRISES, INC., TO ANSWER OR OTHERWISE RESPOND TO COMPLAINT, Defendants shall have until February 23, 2010, to submit their answer or other responsive pleading to Plaintiff's Complaint.

IT IS SO ORDERED

20100125

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