Joe Hand Promotions, Inc. v. Aguirre et al
Filing
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ORDER Denying Defendants' Request for an Extension of Time signed by Magistrate Judge Jennifer L. Thurston on 6/16/2011. (Leon-Guerrero, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOE HAND PROMOTIONS, INC.,
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Plaintiff,
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v.
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BRITTNEY NICOLE AGUIRRE and
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CHRISTOPHER PAPION, individually and
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d/b/a PAPPY’S DOWN SOUTH BBQ,
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Defendants.
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_______________________________________ )
Case No.: 1:10-cv-02293 AWI JLT
ORDER DENYING DEFENDANTS’
REQUEST FOR AN EXTENSION OF TIME
(Doc. 15)
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Defendant Brittney Nicole Aguirre-Papion seeks an extension of time “to ‘reply’ to
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[Plaintiff’s] accusations,” which she filed on June 13, 2011. (Doc. 15). For the following reasons,
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the request is DENIED.
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On December 9, 2010, Plaintiff filed its complaint against Brittney Nicole Aguirre and
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Christopher Papion, individually and doing business as Pappy’s Down South BBQ (“Defendants”),
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alleging violations of 47 U.S.C. § 605, et seq.; 47 U.S.C. § 533, et seq.; and the California Business
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and Professions Code § 17200, et seq. (Doc. 1 at 3-8). In addition, Plaintiff alleges Defendants are
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liable for wrongful conversion of property, arising under California State law. Id. at 6-7. Plaintiff
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alleges it possessed the exclusive rights to the nationwide commercial distribution of the program
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entitled “Ultimate Fighting Championship 107: BJ Penn v. Diego Sanchez,” televised on December
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12, 2009, and alleges that Defendants improperly displayed this televised event at their restaurant
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without Plaintiff’s permission. Id. at 3.
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Plaintiff filed proofs of service indicating Defendants were each served with the summons
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and complaint on March 10, 2011. (Docs. 7-8). Plaintiffs contend that they have not received
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proper service because the summons and complaint were left with a waitress at their restaurant.1
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(Doc. 15) Defendants fail to explain why they believe that this service was improper or ineffective.
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Despite the service documents being left at their restaurant, Defendants failed to respond to the
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complaint within the time prescribed by the Federal Rules of Civil Procedure, and upon application
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of Plaintiff, and pursuant to Fed.R.Civ.P. 55(a), default was entered against Defendants on April 14,
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2011. (Doc. 10).
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The Federal Rules of Civil Procedure govern the timing of pleadings to be filed by parties in
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an action before the Court. In general, a defendant must service an answer “within 21 days after
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being served with the summons and complaint.” Fed.R.Civ.P. 12(a)(1)(A). Therefore, Defendants’
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answer to the complaint was due on March 31, 2011. Here, Defendants seek permission to file an
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untimely pleading responsive to the complaint. However, the Clerk has entered default against
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Defendants, and the “entry of default cuts off Defendants’ rights to appear in the action, file
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counterclaims, or to present a defense.” Great. Am. Ins. Co. v. M.J. Menefee Constr., Inc., 2006 U.S.
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Dist. LEXIS 64902, at *6 (E.D. Cal. Aug. 29, 2006), citing Clifton v. Tomb, 21 F.2d 893, 897 (4th
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Cir. 1927). Consequently, “a party in default is generally precluded from participating in the case
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until the entry of default has been set aside.” Joe Hand Productions v. Estrada, 2011 U.S. Dist.
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LEXIS 35073, at *2, n.1 (E.D. Cal. Mar. 31, 2011).
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Currently, the Court has under submission Plaintiff’s motion for default judgment. Thus, any
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action taken by Defendants at this time may be directed only toward addressing the entry of default.
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Plaintiff’s proofs of service indicate that service was accomplished through substitute service. (Docs. 7, 8)
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Accordingly, IT IS HEREBY ORDERED:
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Defendants’ request for an extension of time to file a pleading responsive to the
complaint is DENIED.
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IT IS SO ORDERED.
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Dated: June 16, 2011
9j7khi
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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