1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUSTIN SALMEN, Case No.: 3:22-cv-01508-BAS-AHG 12 Plaintiff, ORDER:

13 v. (1) DENYING AS MOOT 14 OFFICER BRYANT, et al., PLAINTIFF’S MOTION FOR ORDER DIRECTING DEFENDANTS 15 Defendants. TO REPLY; and 16 (2) GRANTING IN PART AND 17 DENYING IN PART DEFENDANTS’ 18 MOTION FOR EXTENSION OF TIME TO RESPOND TO THE 19 COMPLAINT 20

21 [ECF Nos. 11, 12] 22

23 24 This matter comes before the Court on Plaintiff’s Request for Order Directing 25 Defendants to Reply (ECF No. 11) (“Plaintiff’s Motion”), filed December 27, 2022, and 26 Defendants’ Ex Parte Motion for an Extension of Time to Respond to the Complaint (ECF 27 No. 12) (“Defendants’ Motion”), filed December 30, 2022. 28 Rule 12 of the Federal Rules of Civil Procedure dictates that where, as here, 1 Defendants have timely waived service under Rule 4(d), their deadline to file a responsive 2 pleading to the Complaint is within 60 days after the request for waiver was sent. Fed. R. 3 Civ. P. 12(a)(1)(A)(ii). Here, both Defendant Saenz and Defendant Bryant received a 4 request for waiver of service of summons on November 17, 2022, and both Defendants 5 timely waived personal service on December 16, 2022. ECF Nos. 9, 10. Therefore, 6 Defendants’ current deadline to respond to the Complaint is 60 days after November 17, 7 or January 17, 2023.1 8 In Plaintiff’s Motion, he requests that the Court order Defendants to respond to his 9 Complaint, and to “produce a fair warning this court has power to enter default of judgment 10 under rule 55 of civil procedure. . . so the defendants are not misinformed by counsel in a 11 way that makes them think they are above the law and don[’]t even have to respond or 12 explain their behaviors in this case.” ECF No. 11 at 1. However, in its Order granting 13 Plaintiff’s Motion to Proceed In Forma Pauperis and Directing the U.S. Marshal to Effect 14 Service of the Complaint and Summons, the Court already ordered Defendants, “once 15 served, to reply to Plaintiff’s Complaint within the time provided by the applicable 16 provisions of Federal Rule of Civil Procedure 12(a).” ECF No. 5 at 8. As explained above, 17 the deadline for Defendants to respond to Plaintiff’s Complaint pursuant to Rule 12(a) has 18 not yet passed and currently falls on January 17, 2023. Accordingly, there is no need for 19 an additional order requiring Defendants to respond to the Complaint, and Plaintiff’s 20 Motion (ECF No. 11) is DENIED as moot. 21 In Defendants’ Motion, they request a 60-day extension of the January 17 deadline 22 23 24 1 January 16, 2023 is the date exactly 60 days after November 17, 2022. However, 25 January 16, 2023 is a federal holiday. Accordingly, the deadline falls on January 17, 2023 by operation of the Federal Rules. See Fed. R. Civ. P. 6(a)(1)(C) (providing that, when 26 computing a time period specified in the Federal Rules of Civil Procedure that is stated in 27 days, “if the last day [of the time period] is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal 28 1 to respond to Plaintiff’s Complaint, to March 20, 2023. ECF No. 12 at 1-2. Although 2 Defendants provided a Certificate of Service showing that they mailed a copy of their 3 Motion to Plaintiff on December 30, 2022 (ECF No. 12 at 6), Plaintiff has filed no response 4 with the Court. Accordingly, the Court treats the Motion as ripe for determination. 5 Under Fed. R. Civ. P 16(b)(4), “[a] schedule may be modified only for good cause 6 and with the judge’s consent.” “Good cause” is a non-rigorous standard that has been 7 construed broadly across procedural and statutory contexts. Ahanchian v. Xenon Pictures, 8 Inc.,

(9th Cir. 2010). The good cause standard focuses on the diligence 9 of the party seeking to amend the scheduling order and the reasons for seeking 10 modification. Johnson v. Mammoth Recreations, Inc.,

(9th Cir. 1992). 11 “[T]he court may modify the schedule on a showing of good cause if it cannot reasonably 12 be met despite the diligence of the party seeking the extension.” Fed. R. Civ. P. 16, advisory 13 committee’s notes to 1983 amendment. 14 To establish good cause for their request, Defendants have submitted a Declaration 15 of their counsel, Deputy Attorney General Judith S. Gronna. ECF No. 12 at 3. Ms. Gronna 16 explains that, due to the nature of this case, she requires additional time “to review 17 documents, including Plaintiff’s medical records and grievance history, conduct legal 18 research, confer with my clients, and prepare and serve Defendants’ answer[.]” Id. ¶ 4. 19 Additionally, Ms. Gronna explains that she is currently handling fifteen cases total, and 20 outlines in detail the work responsibilities and deadlines that she is facing in the coming 21 months in several of those cases. Id. ¶ 5. 22 Having reviewed the detailed Declaration of defense counsel, the Court finds that 23 Defendants have shown that the present deadline to respond to Plaintiff’s Complaint cannot 24 reasonably be met despite their diligence. However, Defendants have failed to show good 25 cause to grant an additional 60 days to respond, for a total of 120 days. The work 26 responsibilities outlined by defense counsel in her Declaration, while demanding, are 27 standard day-to-day legal work (e.g., briefing summary judgment motions, preparing for 28 depositions and settlement conferences, preparing discovery responses) and are not so 1 || burdensome as to justify affording counsel twice the amount of time as is typically afforded 2 ||under the Federal Rules to prepare a response. Moreover, most of the work will be 3 ||completed by early February. See id. 7. The Court thus finds good cause to extend the 4 ||responsive pleading deadline by only 30 days. 5 Accordingly, the Court GRANTS in part and DENIES in part Defendants’ Motion 6 ||(ECF No. 12), by extending their deadline by 30 days. Defendants shall have until 7 || February 16, 2023 to file a responsive pleading to Plaintiff's Complaint. 8 IT IS SO ORDERED. 9 10 Dated: January 13, 2023 _ Abia. Xion Honorable Allison H. Goddard 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28