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Rick Futia v. William and Nancy Kelly

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


September 17, 2012

RICK FUTIA,
PLAINTIFF,
v.
WILLIAM AND NANCY KELLY, AS TRUSTEES OF THE KELLY FAMILY TRUST, DEFENDANTS.

PLAINTIFF'S STATUS REPORT

In response to the Court's request, Plaintiff submits the following Status Report: This is an ADA case. Plaintiff is a disabled wheelchair user. Defendants own the real property in San Jose where a restaurant is operated. Plaintiff patronized the Restaurant three time in 2011 and encountered barriers. The Complaint seeks an injunction, damages and fees.

The Complaint was filed on January 13, 2012. Court papers, along with a Notice of Lawsuit and Waiver of the Service of Summons were mailed to the Defendants on January 19, 2012. Defendant did not respond to this.

On April 2, 2012 Plaintiff e-mailed the Summons and Complaint to ABC Legal Services and instructed it to serve the Defendants. On June 5, 2012, in response to a request for a status update, ABC informed Plaintiff that the address in the Summons, which looked like a physical address, was really a mail drop. Plaintiff then instructed ABC to perform a skip trace in order to locate the Defendants for service.

On June 15, 2012, ABC e-mailed Plaintiff a Report, showing a Hayward address for the Defendants. On June 17, 2012, Plaintiff instructed ABC to serve the Summons and Complaint on the Defendants in Hayward.

Summons and Complaint were served on June 27, 2012. On July 3, 2012 Defendant William Kelly, called Plaintiff's counsel. It was agreed that Plaintiff's Expert, Kim R. Blackseth, would perform the Joint Inspection on July 26, 2012. On July 11, 2012, Defendants' attorney, James Fisher ((510) 482-1900) called Plaintiff's counsel (1) to identify himself and (2) to state that Plaintiff's counsel could deal directly with William Kelly.

On July 23, 2012, William Kelly called Plaintiff's counsel and cancelled the Joint Inspection. He stated that he had hired his own architect and would provide Plaintiff with the architect's Report by August 10, 2012. The Report has not yet been provided.

On September 10, 2012, the Court issued a request for a Status Report. In reaction to that, Plaintiff's counsel (1) filed the Proof of Service, (2) left a message with Mr. Fisher that Plaintiff would be filing a Request to Enter defendants' default on September 15, 2012 and (3) sent a e-mail to William Kelly, stating that Plaintiff would file a Request to Enter defendants' default on September 15, 2012.

As of the date and time this Status Report was filed, neither Mr. Kelly nor Mr. Fisher had responded.

Plaintiff suggest that the Court request another Status Report in 30 days. September 11, 2012 S/Thomas N. Stewart, III Attorney for Plaintiff

20120917

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