The opinion of the court was delivered by: Judge Morrison C. England, Jr.
BENJAMIN B. WAGNER United States Attorney LYNN TRINKA ERNCE Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, California 95814 Telephone: (916) 554-2720 Attorneys for United States of America
EX PARTE APPLICATION FOR AN ORDER EXTENDING THE TIME FOR DEFENDANTS TO RESPOND TO COMPLAINT; DECLARATION OF LYNN TRINKA ERNCE; ORDER
The United States of America respectfully requests that the Court enter an order granting defendants a 60-day extension of time to respond to plaintiff's complaint. In support of this ex parte application, the United States respectfully represents as follows:
1. Plaintiff filed his complaint for damages against the United States Postal Service ("USPS") and USPS employee Jay Negus, on June 23, 2011. Docket 1. Plaintiff's claims relate to a motor vehicle accident that occurred on June 24, 2009.
2. On January 23, 2012, the Court issued an order to show cause in writing why the case should not be dismissed and ordered plaintiff to respond within ten days. Docket 6.
3. On February 2, 2012, plaintiff filed a response to the order to show cause. Dockets 7, 8. In his response, plaintiff disclosed that, in addition to his claim against the defendants in this case:
* Plaintiff had sued defendant Negus in state court for damages related to the June 24, 2009 accident and reached a settlement which purports to preserve plaintiff's claims against Negus and the USPS in federal court;
* There is a pending criminal case against defendant Negus in state court related to the June 24, 2009 accident;
* Plaintiff also sued the owner of the property that plaintiff allegedly drove onto on June 24, 2009, when he veered onto the property to avoid a collision, because the landowner applied a substance to the road and shoulder that caused plaintiff to be unable to slow his vehicle;
* Plaintiff obtained a default judgment against the landowner which was set aside in December 2011, and the set-aside order is presently on appeal; and
* The landowner filed a cross-complaint against Negus and USPS in state court.
4. On February 24, 2012, the Court ordered parties to file a joint status report by no later than March 23, 2012. Docket 9.
5. On March 2, 2012, plaintiff filed a return of service which states, among other things, that he served defendant Negus with the summons and complaint on February 19, 2012, and the United States Attorney for defendant USPS on February 22, 2012. Docket 10. The docket indicates that defendants Negus' and USPS' responses to the complaint are due on April 19, 2012 and April 23, 2012, respectively.
6. On March 2, 2012, the undersigned Assistant United States Attorney ("AUSA") was assigned to handle the defense of this litigation. Declaration of Lynn Trinka Ernce ("Ernce Decl., ¶ 2). That same day, she called plaintiff's attorney to introduce herself and to speak about the case. Id. During the call, plaintiff's attorney offered to provide copies of all of the state court documents the following week. Id.
7. On March 8, 2012, plaintiff's counsel faxed a copy of the state court cross-complaint to the AUSA. Ernce Decl., ¶ 3. However, since no other state court case documents were received from plaintiff, the AUSA requested in writing copies of the case files for the original lawsuit filed by plaintiff against defendant Negus and also for the lawsuit against the landowner in which the landowner filed a cross-complaint. Id.
8. On March 23, 2012, plaintiff and the United States filed a joint status report. Docket 11. In the joint status report, plaintiff stated that he had disclosed informally many documents to the defense through the tort claims process and that he would make all formal disclosures by March 23, 2012. Id.
9. In the joint status report, the United States stated that its investigation was ongoing and that it might need an extension of time beyond April 23, 2012 to respond to the complaint so that it could complete its investigation of matters related to the June 24, 2009 accident. Docket 11 at 2. Among other issues, the United States explained that it had not yet certified that the defendants were acting in the scope of employment at the time of the accident, it was still investigating the landowner lawsuit and had not determined whether it would remove that case to federal court, and that the United States had not yet ...