UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 10, 2010
J&J SPORTS PRODUCTION, INC., PLAINTIFF,
RAMON LOPEZ FRANCO, DBA KNOCK-OUT BAR & GRILL,
The opinion of the court was delivered by: Dennis L. Beck9b0hie United States Magistrate Judge
ORDER GRANTING DEFENDANT ADDITIONAL TIME TO FILE ANSWER ORDER DENYING DEFENDANT'S MOTION TO SET ASIDE DEFAULT AS MOOT (Document 7)
Plaintiff J&J Sports Production, Inc. ("Plaintiff") filed the instant action on September 16, 2010. Plaintiff names Ramon Lopez Franco, dba Knock-out Bar & Brill, as Defendant, and alleges various causes of action based on Defendant's alleged wrongful interception and display of "Number One: The Floyd Mayweather, Jr. v. Juan Manuel Marquez Championship Fight Program," on September 19, 2009. Specifically, Plaintiff alleges causes of action for (1) violation of 47 U.S.C. § 605; (2) violation of 47 U.S.C. § 553; (3) conversion; and (4) violation of California Business & Professions Code § 17200, et seq.
On October 7, 2010, Plaintiff filed a proof of service with this Court indicating that Defendant was personally served at his place of business on October 2, 2010, at 5:02 p.m. An answer was therefore due by October 25, 2010.
On October 26, 2010, Plaintiff filed a request for entry of default.
On November 10, 2010, even though default had not been entered, Defendant, proceeding pro se, filed a motion to set aside the default. Plaintiff opposed the motion on November 16, 2010. The motion was deemed suitable for decision without hearing pursuant to Local Rule 230(g).
A. Default Contrary to the parties' belief, default has not been entered.
On October 25, 2010, at 7:48 p.m., this Court received an e-mail from Yezenia Lopez, Defendant's daughter, requesting information on how to proceed. Ms. Lopez indicated that Defendant received the summons and that he does not speak or read English. Ms. Lopez said that she became aware of the summons "on Sat[urday]."
The Court responded on October 26, 2010, at 11:14 a.m. The Court explained that it could not provide legal information and suggested that Defendant contact Plaintiff's counsel. The Court provided Plaintiff's counsel's name and phone number.
In the interim, Plaintiff filed a request for entry of default on October 26, 2010, at 10:55 a.m. As Defendant, through his daughter, had contacted the Court the prior evening, the Court did not enter default immediately. Default was not subsequently entered because of a clerical error.
Accordingly, because there is no default to set aside, Defendant's motion is DENIED AS MOOT. Defendant SHALL submit an answer to the complaint within thirty (30) days of the date of service of this order.
B. Plaintiff's Position
Even if default had been entered, the Court would have granted Defendant's motion to set it aside. First, pursuant to Plaintiff's own statement, Defendant's communication with the Court prior to October 26, 2010, demonstrates that he was attempting to proceed with this action but that his pro se status rendered him unsure of how to do so. In attempting to argue that Defendant took too much time to file this motion after learning of the action, Plaintiff states, "There was nothing stopping Defendant from contacting Plaintiff or the Court on Monday, October 25,2010." Opposition, 4. As explained above, Defendant did indeed contact the Court on Monday, October 25, 2010.
Second, although Plaintiff purports to acknowledge Defendant's pro se status, the arguments made in opposition to the motion attempt to hold Defendant to higher standard. For example, Plaintiff contends that Defendant's statement that he was not served on October 2, 2010, is "insufficient to constitute the 'strong and convincing evidence' necessary to satisfy his burden." While this may be the standard, the Court would not hold Defendant to such knowledge without further exploring the matter. Plaintiff also attempts to fault Defendant for waiting 16 days between allegedly learning of the action and submitting this motion. Sixteen days, however, would not necessarily be an unreasonable amount of time even for someone who is represented by counsel. That Plaintiff would suggest to the Court that a pro se Defendant has failed to satisfy his burden of demonstrating good cause by taking 16 days to attempt to find counsel, research procedural matters and write and submit the instant motion is incredulous.
Third, even though there is a dispute about service, Defendant has done nothing to demonstrate culpable conduct. To the contrary, Defendant contacted this Court prior to the request for default and then submitted this motion, in pro se, in an attempt to explain his position.
Finally, Plaintiff's suggestion that it would be prejudiced because it has "expended time and money in pursuing its claim against Defendant and this time and money will be wasted if the default is set aside," is not well taken. Plaintiff's counsel files actions of this nature on a regular basis and the complaint is little more than a form complaint with certain identifying information included. The time and money spent does not rise to a level sufficient for this Court to consider depriving Defendant of a decision on the merits.
Based on the above, Defendant's motion is DENIED AS MOOT. Defendant SHALL file an answer to the complaint within thirty (30) days of the date of service of this order.
IT IS SO ORDERED.
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