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Robert Kalani v. Mother Lode Investors


July 2, 2012



On February 3, 2012, plaintiff filed a complaint alleging violations of the Americans with Disabilities Act and related state claims.

On February 22, 2012, defendant Mother Lode Investors filed an application for a stay under Cal. Civ. Code § 55.54, signed by general partner Stan Lukowicz, alleging that the site has been inspected by a Certified Access Specialist, who has issued a report, which renders the case appropriate for a stay and an early evaluation conference under California law. ECF No. 6.

On February 24 and 27, plaintiff filed executed summons showing that Mother Lode Investors and Stan Lukowicz, individually and as agent for service of Mother Lode Investors, had been served on February 15, 2012 by delivery of summons and complaint to the person in charge of Lukowicz's office and thereafter by first class mail to the address listed on the declarations of service. ECF Nos. 8, 9; see CAL. CIV. PROC. CODE §§ 415.10, 415. 20; FED. R. CIV. P. 4(e). A third defendant, Barbara Wierschen, was served on February 10, 2012.

On March 22, 2012, this court issued a minute order informing defendant Mother Lode Investors that the motion for a stay would not be considered as it was not properly noticed on the court's calendar in compliance with Local Rule 230(b).

On April 4, 2012, plaintiff requested the entry of default as to all three defendants. The clerk entered default as Wierschen, but denied it as to Mother Lode Investors and Lukowicz because they had filed the request for a stay. ECF Nos. 13, 14.

Plaintiff has now asked the court to direct entry of default against defendants Mother Lode Investors and Lukowicz. Counsel has supported the request with an affidavit.

Under Rule 55(a) of the Federal Rules of Civil Procedure, the clerk must enter a default when a party "has failed to plead or otherwise defend" and the failure "is shown by affidavit or otherwise." Under Rule 12(a)(1)(A)(I) of the Federal Rules of Civil Procedure, defendants' answer was due within twenty one days of the date of service which, in this case, was March 8, 2012.

The defendants against whom the default is sought filed a request for a stay and referral for an early evaluation conference for construction-related accessibility claims as provided for in the California Civil Code. CAL. CIV. CODE §§ 55.54, 55.52(a). This procedure is not recognized in federal court, although this court has its own Voluntary Dispute Resolution Program the parties may wish to participate in. See O'Campo v. Chico Mall, LP, 758 F. Supp. 2d 976, 985 (E.D. Cal. 2010); Oliver v. Hot Topic, Inc., No. 10cv1111BEN (AJB), 2010 WL 4261473, at *1 (N.D. Cal. 2010). Although defendants used the wrong procedure, their filing the request for a stay shows they were "otherwise defend[ing]" by pursuing a speedy resolution of this case. Compare Allstate Ins. Co. v. Bogoraz, No. 10-CV-5286 (SJF)(ETB), 2012 WL 1655552, at *4 (default appropriate when party had not taken any action despite court orders). The court declines to direct the clerk to enter default.

Nevertheless, defendants have not answered and the case therefore is not moving forward. Defendants Mother Lode Investors and Lukowicz are directed to respond to the complaint within fourteen days of this order. Should they fail to respond, the court will then consider sanctions, including the entry of default.



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