Opinion
22-CV-1516 TWR (AHG)
12-14-2022
GS HOLISTIC, LLC, Plaintiff, v. LUNG DOCTOR, INC., doing business as LUNG DOCTOR SMOKE SHOP; MARTIN H. JABRO; and J. ERIC HOLLMANN, Defendants.
ORDER APPROVING NUNC PRO TUNC STIPULATION TO EXTEND TIME FOR LUNG DOCTOR, INC. AND MARTIN H. JABRO TO RESPOND TO COMPLAINT
(ECF No. 8)
Honorable Todd W. Robinson United States District Judge
Presently before the Court is the Parties' Stipulation to Extend Time for Defendants to Respond to Plaintiff's Complaint (ECF No. 8, “Stip.”). On October 5, 2022, Plaintiff GS Holistic, LLC filed a Complaint against Defendants Lung Doctor, Inc.; Martin H. Jabro; and J. Eric Hollmann. (See ECF No. 1.) Plaintiff personally served Defendant Lung Doctor, Inc. on October 25, 2022. (See ECF 5.) “A defendant must serve an answer[] within 21 days after being served,” Fed.R.Civ.P. 12(a)(1)(A)(i), “exclud[ing] the day of the event that triggers the period,” Fed.R.Civ.P. 6(a)(1)(A). Accordingly, Lung Doctor, Inc.'s response was due on or before November 16, 2022. However, Lung Doctor, Inc. failed to respond to Plaintiff's Complaint in a timely manner. (See generally Docket.)
Defendant J. Eric Hollmann has not yet appeared before the Court and has not joined the Stipulation.
After serving Lung Doctor, Inc., Plaintiff attempted to effect substitute service on Defendant Martin H. Jabro pursuant to California state law, which allows a plaintiff to leave a complaint and summons with a “person at least 18 years of age” who is “apparently in charge” of defendant's office if plaintiff also mails a copy of the same to the office thereafter. See Cal. Code Civ. P. § 415.20(a); see also Fed.R.Civ.P. 4(e)(1). Here, Plaintiff purported to serve a copy of the Complaint and summons at Defendant Jabro's office and by mail on November 4, 2022. (See ECF 6.) If service was proper, which Mr. Jabro appears to contest, (see Stip. at 1, 2), Mr. Jabro's response was due on or before November 28, 2022, see Fed.R.Civ.P. 6(a)(1)(C), or, if the Court applies California's rule that “[s]ervice of a summons in [the aforementioned] manner is deemed complete on the 10th day after the mailing,” on December 5, 2022, see Cal. Code Civ. P. § 415.20(a); but see Beller & Keller v. Tyler, 120 F.3d 21, 25-26 (2nd Cir. 1997) (accepting state law method of service while rejecting state law rule that “service shall be complete ten days after such filing”). Under either deadline, Defendant Jabro has failed to timely respond to Plaintiff's Complaint. (See generally Docket.)
On December 7, 2022-after the expiration of their response deadlines-Defendants Jabro and Lung Doctor, Inc. filed the instant Stipulation. (See generally id.) Pursuant to Federal Rule of Civil Procedure 6(b)(1)(B), the court may grant an extension after time has expired if the movant demonstrates good cause and a failure to act because of excusable neglect. See Fed.R.Civ.P. 6(b)(1); see also S.D. Cal. CivLR 12.1. Here, Defendants Jabro and Lung Doctor, Inc. assert that “good cause exists for this extension as defense counsel was recently assigned to this case and requires time to become knowledgeable about the case to prepare an initial pleading.” (Stip. at 2.) It also appears Defendants failed to act because their counsel was not retained until “the end of November[] 2022.” (Id.) As a result of this delay, “the Parties agree[d] that Defendant Lung Doctor's time to answer or otherwise respond to the Complaint should be extended until thirty (30) days from the date of this stipulation, in order to give both Lung Doctor and Mr. Jabro time to answer.” (Id.)
The Court finds that Defendants Lung Doctor, Inc. and Mr. Jabro failed to act because of excusable neglect, and there is good cause for an extension. Consequently, the Court APPROVES the Parties' Stipulation providing Lung Doctor, Inc. and Mr. Jabro thirty days from the filing of the Stipulation to respond to Plaintiff's Complaint. Accordingly, Defendants Lung Doctor, Inc. and Mr. Jabro SHALL RESPOND to Plaintiff's Complaint on or before Monday, January 9, 2023. See Fed.R.Civ.P. 6(a)(1)(C).
IT IS SO ORDERED.