1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GS HOLISTIC, LLC, Case No. 22-CV-1516 TWR (AHG)

12 Plaintiff,

ORDER APPROVING NUNC PRO

13 v. TUNC STIPULATION TO EXTEND

TIME FOR LUNG DOCTOR, INC.

14 LUNG DOCTOR, INC., doing business as

AND MARTIN H. JABRO TO

LUNG DOCTOR SMOKE SHOP;

15 RESPOND TO COMPLAINT MARTIN H. JABRO; and J. ERIC

16 HOLLMANN, (ECF No. 8) 17 Defendants. 18 Presently before the Court is the Parties’ Stipulation to Extend Time for Defendants 19 to Respond to Plaintiff’s Complaint (ECF No. 8, “Stip.”). On October 5, 2022, Plaintiff 20 GS Holistic, LLC filed a Complaint against Defendants Lung Doctor, Inc.; Martin H. Jabro; 21 and J. Eric Hollmann.1 (See ECF No. 1.) Plaintiff personally served Defendant Lung 22 Doctor, Inc. on October 25, 2022. (See ECF 5.) “A defendant must serve an answer[] 23 within 21 days after being served,” Fed. R. Civ. P. 12(a)(1)(A)(i), “exclud[ing] the day of 24 the event that triggers the period,” Fed. R. Civ. P. 6(a)(1)(A). Accordingly, Lung Doctor, 25 Inc.’s response was due on or before November 16, 2022. However, Lung Doctor, Inc. 26 failed to respond to Plaintiff’s Complaint in a timely manner. (See generally Docket.) 27

28 1 After serving Lung Doctor, Inc., Plaintiff attempted to effect substitute service on 2 Defendant Martin H. Jabro pursuant to California state law, which allows a plaintiff to 3 leave a complaint and summons with a “person at least 18 years of age” who is “apparently 4 in charge” of defendant’s office if plaintiff also mails a copy of the same to the office 5 thereafter. See Cal. Code Civ. P. § 415.20(a); see also Fed. R. Civ. P. 4(e)(1). Here, 6 Plaintiff purported to serve a copy of the Complaint and summons at Defendant Jabro’s 7 office and by mail on November 4, 2022. (See ECF 6.) If service was proper, which 8 Mr. Jabro appears to contest, (see Stip. at 1, 2), Mr. Jabro’s response was due on or before 9 November 28, 2022, see Fed. R. Civ. P. 6(a)(1)(C), or, if the Court applies California’s 10 rule that “[s]ervice of a summons in [the aforementioned] manner is deemed complete on 11 the 10th day after the mailing,” on December 5, 2022, see Cal. Code Civ. P. § 415.20(a); 12 but see Beller & Keller v. Tyler, 120 F.3d 21, 25–26 (2nd Cir. 1997) (accepting state law 13 method of service while rejecting state law rule that “service shall be complete ten days 14 after such filing”). Under either deadline, Defendant Jabro has failed to timely respond to 15 Plaintiff’s Complaint. (See generally Docket.) 16 On December 7, 2022—after the expiration of their response deadlines—Defendants 17 Jabro and Lung Doctor, Inc. filed the instant Stipulation. (See generally id.) Pursuant to 18 Federal Rule of Civil Procedure 6(b)(1)(B), the court may grant an extension after time has 19 expired if the movant demonstrates good cause and a failure to act because of excusable 20 neglect. See Fed. R. Civ. P. 6(b)(1); see also S.D. Cal. CivLR 12.1. Here, Defendants 21 Jabro and Lung Doctor, Inc. assert that “good cause exists for this extension as defense 22 counsel was recently assigned to this case and requires time to become knowledgeable 23 about the case to prepare an initial pleading.” (Stip. at 2.) It also appears Defendants failed 24 to act because their counsel was not retained until “the end of November[] 2022.” (Id.) As 25 a result of this delay, “the Parties agree[d] that Defendant Lung Doctor’s time to answer or 26 otherwise respond to the Complaint should be extended until thirty (30) days from the date 27 of this stipulation, in order to give both Lung Doctor and Mr. Jabro time to answer.” (Id.) 28 / / / 1 The Court finds that Defendants Lung Doctor, Inc. and Mr. Jabro failed to act 2 || because of excusable neglect, and there is good cause for an extension. Consequently, the 3 ||Court APPROVES the Parties’ Stipulation providing Lung Doctor, Inc. and Mr. Jabro 4 ||thirty days from the filing of the Stipulation to respond to Plaintiffs Complaint. 5 || Accordingly, Defendants Lung Doctor, Inc. and Mr. Jabro SHALL RESPOND to 6 || Plaintiffs Complaint on or before Monday, January 9, 2023. See Fed. R. Civ. P. 7 6(a)(1)(C). 8 IT IS SO ORDERED. 9 || Dated: December 14, 2022 —— (2 10 lad \& (re 11 Honorable Todd W. Robinson D United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28