Summary
In Halliday, the court granted the government's request for a stay of the civil proceedings, as the government was conducting a criminal investigation of the plaintiffs.
Summary of this case from Estate of Hernandez-Rojas v. Customs & Border Patrol Agent 7663Opinion
1:07-CV-00620 AWI GSA.
January 18, 2008
ORDER GRANTING MOTION FOR EXTENSION OF TIME TO RESPOND (Document 29)
INTRODUCTION
Defendants' United States of America and Kent Spjute, Jean Noll, Jeff Hodge, Brian Applegate and Michele Casarez (collectively "Defendants") seek an extension of time to respond to the Complaint filed by Glen Halliday, Ashley M. Ioane, Shelley J. Ioane, Michael S. Ioane, Jr., and Michael S. Ioane, Sr. (collectively "Plaintiffs") on the ground that this matter had been closed and Defendants did not have notice that the case had been reopened. Plaintiffs did not file any opposition to the motion and requested extension. Accordingly, this Court considered Defendants' Motion for Extension of Time to Respond on the record and briefs on file and VACATES the January 25, 2008, hearing. As discussed below, this Court GRANTS Defendants' Motion for Extension of Time To Respond nunc pro tunc to December 19, 2007.
DISCUSSION
On April 24, 2007, Plaintiffs filed the present action. On July 24, 2007, the Court adopted the Magistrate Judge's Findings and Recommendation that Plaintiff be denied leave to proceed in forma pauperis and ordered to pay the filing fee within fifteen (15) days. On October 2, 2007, this Court erroneously issued an Order dismissing the action for failure to pay the filing fee and directing the Clerk of the Court to enter judgment. A Clerk's Judgment was entered the same date. A review of the docket revealed that plaintiff paid the filing on May 10, 2007. Accordingly, on October 12, 2007, the Court vacated its order dismissing the case and the corresponding Clerk's Judgment filed October 2, 2007. The Clerk of the Court was directed to reopen the case on October 12, 2007.
On November 14, 2007, Plaintiffs requested entry of default by the Clerk of the Court based on Defendants' failure "to plead or otherwise defend as to the Complaint" pursuant to Federal Rule of Civil Procedure 55(a). On November 19, 2007, Defendants filed an opposition to the Plaintiffs' Request for Entry of Default. Defendants also filed the present motion for an extension of time to respond.
Defendants explained that they received notice of this case during August 2007 and, on October 2, 2007, prior to the time that the Defendants were required to make an appearance, the Court dismissed this action. Declaration of Erin B. Ashwell ("Ashwell Decl."), at ¶¶ 2, 3. Defendants' counsel notified Defendants Kent Spjute, Jean Noll, Jeff Hodge, Brian Applegate and Michele Casarez that the action against them had been dismissed. Ashwell Decl., at ¶ 5. Believing the matter had been closed, Defendants did not make an appearance in this action. Ashwell Decl., at ¶ 6. Defendants did not receive notice of the Court's Order of October 11, 2007, directing the Clerk of the Court to reopen the case. Ashwell Decl., at ¶¶ 7, 8. Defendants' counsel did not become aware that the case had been re-opened until Friday, November 16, 2007. Ashwell Decl., at ¶ 9. Defendants have requested an extension of thirty (30) days from November 19, 2007, in which to file a response in this matter.
Plaintiffs did not file any objections to Defendants' motion for extension of time to respond.
ORDER
Based on the foregoing, and good cause appearing, the hearing currently set before the undersigned on January 25, 2008, is VACATED and Defendants' Motion for Extension of Time to Respond is GRANTED nunc pro tunc to December 19, 2007.IT IS SO ORDERED.