United States District Court, E.D. California
ORDER HOLDING MOTION FOR DEFAULT JUDGMENT IN ABEYANCE
UNTIL JANUARY 8, 2020, AND DIRECTING DEFENDANT MARIA MARTINEZ
A/K/A MARIA LOURDES MARTINEZ VASQUEZ D/B/A ACCESORIOS
MARTINEZ TO FILE RESPONSE TO PLAINTIFF'S COMPLAINT ON OR
BEFORE JANUARY 8, 2020. (ECF NO. 16)
March 5, 2019, Plaintiff Jose Acosta
(“Plaintiff”) filed this suit against Defendants
Maria Martinez a/k/a Maria Lourdes Martinez Vasquez d/b/a
Accesorios Martinez (“Martinez”) and TBS
Properties, Inc. (“TBS”) for alleged violations
under the Americans with Disabilities Act, 42 U.S.C.
§§ 12101 et seq. (“ADA”) and
related California statutes. (ECF No. 1.) Neither Martinez
nor TBS has filed any response to the Complaint.
7, 2019, Plaintiff filed a motion for default judgment
against Martinez and TBS. (ECF No. 9.) The Court held a
hearing on the motion on July 12, 2019. Martinez personally
appeared at the hearing and indicated that she wished to
contest Plaintiff's Complaint. Plaintiff's counsel
agreed to withdraw Plaintiff's motion for default
judgment against Martinez to allow her time to respond to the
on July 19, 2019, the Court issued an order: (1) granting
Plaintiff's motion to withdraw his motion for a default
judgment as to Martinez, (2) deferring ruling on
Plaintiff's motion for default judgment as to TBS, and
(3) directing the Clerk of Court to vacate the entry of
default against Martinez. (ECF No. 16.) The Court further
ordered Martinez to file responsive pleadings no later than
September 13, 2019, and provided with her excerpts of the
pertinent federal rules dealing with responsive pleadings and
pleading requirements in general- specifically Federal Rules
of Civil Procedure 8 and 12.
failed to file responsive pleadings by September 13, 2019.
Plaintiff then filed a second motion for default judgment
against Martinez and TBS on October 2, 2019. (ECF No. 16.)
Court held a hearing on the motion on November 8, 2019. Tanya
Moore appeared telephonically on behalf of Plaintiff.
Defendant Martinez appeared personally and participated in
the hearing with the assistance of her daughter, as Martinez
does not speak English.
explained that she attempted to retain the services of an
attorney to respond to Plaintiff's Complaint, or at least
to speak with Plaintiff's counsel about resolution of the
matter. She stated that a lawyer tried to reach defense
counsel but could not reach him. The Court notes that
previous defense counsel, Zachary Best, is no longer with the
firm representing Plaintiff. Martinez asked for additional
time to allow her to continue to attempt to retain the
attorney or speak directly with Plaintiff's counsel about
the Complaint and pending motion for default judgment.
for Plaintiff, Ms. Moore, provided her contact information to
Martinez and spoke to her in Spanish about how to reach her.
Court also noted that Plaintiff failed to seek another entry
of default from the Clerk of Court against Martinez after the
Court vacated the previous entry of default following the
July 12, 2019 hearing. Under Ninth Circuit precedent and
Federal Rule of Civil Procedure 55, an entry of default must
precede a default judgment. See Eitel v. McCool, 782
F.2d 1470, 1471 (9th Cir. 1986) (noting that Rule 55 requires
a two-step process before entering a default judgment
consisting of (1) seeking the clerk's entry of default,
and (2) filing a motion for entry of default judgment).
based on the foregoing, at the conclusion of the hearing, the
Court explained that it would wait 60 days to rule on the
motion to allow Martinez time to consult an attorney and to
file responsive pleadings if necessary and to allow Plaintiff
time to seek another entry of default against Martinez.
the Court will hold Plaintiff's Motion for Default
Judgment (ECF No. 16.) in abeyance for 60 days until January
8, 2020. In this 60-day time frame, Martinez, or her lawyer
if she retains one, should call counsel for Plaintiff, Tayna
Moore, at 408-298-2000, to discuss Plaintiff's Complaint
(ECF No. 1.) and Plaintiff's pending Motion for Default
Judgment. In this 60-day time frame, unless Plaintiff and
Martinez reach a resolution of the case, Martinez must also
file a response to Plaintiff's Complaint. The Court again
refers Martinez to Federal Rules of Civil Procedure 8 and 12.
based on the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion for Default Judgment (ECF No. 16.)
is held in abeyance for 60 days until January 8,
2020, at which time the Court will take the motion
under consideration. In the interim, Martinez, or her
attorney, is encouraged to consult with attorney for
Plaintiff, Tanya Moore, regarding Plaintiff's Complaint
and pending Motion for Default Judgment.
2. To the extent the parties are unable to resolve the
matter, Martinez is ordered to file responsive pleadings to
Plaintiff's Complaint on or before January 8,
3. Martinez is warned that her failure to file responsive
pleadings on or before January 8, 2020 could
lead to the undersigned recommending that Plaintiff's
Motion for a Default Judgment be granted and that all ...