Rasmussen v. Hickey

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANA RASMUSSEN Case No.: 20cv411-LAB (JLB)

12 Plaintiff, ORDER EXTENDING TIME FOR 13 v. DEFENDANT DONALD HICKEY TO RESPOND TO AMENDED 14 DONALD HICKEY, et al. COMPLAINT; AND 15 Defendants. ADMONITIONS TO PARTIES 16 17 18 On November 23, the Court extended the time for Defendant Donald Hickey, 19 a prisoner, to respond to the complaint. He was to have filed his answer or a 20 responsive motion by December 21. On December 23, the Court received a letter 21 from Hickey, which included various questions, requests, and arguments, as well 22 as an explanation that the prison where he is incarcerated is on lockdown. The 23 Court rejected that ex parte communication for filing. Any requests Hickey has 24 should be made in a motion, not in a personal letter to the Court. 25 At the same time, it is clear Hickey is attempting to defend himself from the 26 claims against him. In light of the strong policy favoring decisions on the merits 27 when reasonably possible, see Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 28 1986), the Court sua sponte extends the time for Hickey to file his answer or other 1 response to the complaint. He may file his answer or other response by January 2 26, 2021. 3 Hickey’s letter suggests that he thinks he needs access to documents and 4 to a law library in order to file his answer. Hickey says these are unavailable 5 because of the lockdown. The Court is aware that Hickey is not a lawyer and does 6 not have access to the materials he would like to have. However, he has personal 7 knowledge of the facts, and has repeatedly attempted to explain why the complaint 8 lacks merit. He should prepare and file the best answer or motion to dismiss that 9 he can file based on the information he knows. As much as possible, he must also 10 gather the documents he believes he needs — for example, by writing to the lawyer 11 he says has some of them and requesting copies. If new information that he could 12 not reasonably have known comes to light later, he may request leave to amend 13 his answer or to file a new responsive motion. 14 As the Court explained in its November 23, order, the Court intends to decide 15 the claims on the merits if it is reasonably possible to do so. Nevertheless, Hickey 16 will not be excused indefinitely from offering any adequate defense. And the Court 17 will not refrain indefinitely from granting default judgment merely because Hickey 18 has encountered some difficulties. Even if Hickey cannot do everything he would 19 like to do to defend himself in this case, he must do what he can reasonably do 20 under the circumstances. 21 On December 23, Plaintiff’s counsel filed a motion styled “Amended Motion 22 for Default Judgment.” In fact, the motion was a motion for reconsideration of the 23 Court’s earlier denial of the motion for default judgment. Because it was filed 24 without obtaining a hearing date from the Court, it was rejected for filing. That being 25 said, it was also premature. Hickey’s letter, dated December 14, was received by 26 the Court on December 23. Because Hickey is a prisoner, he is will be given the 27 benefit of the prisoner mailbox rule. See Douglas v. Noelle, 567 F.3d 1103, 1107 28 (9th Cir. 2009) (applying prisoner mailbox rule recognized in Houston v. Lack, 487 1 ||U.S. 266 (1988) to § 1983 suits). Before assuming that Hickey has not answered 2 ||or responded, Plaintiff's counsel should wait a reasonable time for mail to arrive at 3 || the Court and be docketed. In this case, until the Court rejected Hickey’s letter by 4 || discrepancy order, it was not clear whether it would be construed as a responsive 5 || pleading. 6 7 IT IS SO ORDERED. 8 ||Dated: January 6, 2020 Laud A 10 Honorable Larry Alan Burns 14 Chief United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28