Free Order - District Court of California - California

Case 3:07-cv-04946-JSW

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Filed 06/18/2008

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1 2 3 4 5 6 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 10 MEI-FANG LISA ZHANG, et al. Plaintiffs, v. WEI-MAN RAYMOND TSE, et al. Defendants. / 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs note that PFC Lau did not include a letter or other communication from her commanding officer with her request for a stay. See 50 App. U.S.C. § 522(b)(2)(B). PFC Lau, however, did submit a document setting forth her orders, which does not suggest that she would be authorized for military leave. In light of the Plaintiffs' lack of opposition to a 90 day stay, the Court did not deny the request to stay based on procedural defects.
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IN THE UNITED STATES DISTRICT COURT

No. C 07-04946 JSW ORDER VACATING DEFAULT AND CONTINUING STAY OF ACTION AS TO DEFENDANT MOLLY LAU

United States District Court

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For the Northern District of California

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On October 30, 2007, this Court received a letter dated October 23, 2007, from Defendant, Private First Class Molly Lau ("PFC Lau"), in which she advised the Court that she is a member of the United States Army currently serving in an overseas tour in Korea and requested that the Court stay this action pursuant to the Servicemember's Civil Relief Act, 50 App. U.S.C. § 522. In that letter, PCL Lau stated that she is scheduled to remain in Korea until October 6, 2008.1 No other responses have been received. On January 2, 2008, the Court entered a 90 day stay as to PCF Lau and stated that if PFC Lau requested a further stay, she should submit a request pursuant to 50 App. U.S.C. § 522(d). PFC Lau has not filed such a request. On February 11, 2008, Plaintiffs filed a request for default against a number of defendants, but did not include PFC Lau in that request. On April 11, 2008, at a case

Case 3:07-cv-04946-JSW

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management conference, the Court ordered the Clerk to enter default "against all defendants except Run Ping Zhou." (Docket No. 59.) On June 16, 2008, Plaintiffs filed a request for default against PFC Lau, based in part upon the Court's minute order of April 11, 2008, and in part because the 90 day stay has expired and PFC Lau has not entered an appearance. The Clerk entered default against PFC Lau on June 17, 2008. Because the Court was addressing the request for default filed on February 11, 2008, that Order was not intended to encompass PFC Lau and default should not have been entered on that basis. Pursuant to 50 U.S.C. App. § 522(b), "at any stage before final judgment in a civil action at any stage before final judgment in a civil action or proceeding in which a servicemember described in subsection (a) is a party, the court may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met." Once again, although PFC Lau did not include a letter or other communication from her commanding officer, she has submitted a letter stating that her service in Korea is expected to last until October 6, 2008. In addition, in Plaintiffs' response to the Court's Order to Show Cause as to why a stay should not be granted, Plaintiffs stated that they "have confirmed with a JAG officer at Camp Casey that PFC Lau is indeed a private first class in the United States Army stationed in South Korea." (See Docket No. 31.) Accordingly, the Court HEREBY ORDERS that the default be vacated, and the Court shall impose a further stay until November 7, 2008. See 50 U.S.C. App. 522(d). At that time, if PFC Lau has not entered an appearance pro se or through counsel, the Court shall lift the stay and shall appoint counsel to represent PFC Lau. Id. § 522(d)(2). Plaintiffs shall serve a copy of this Order on PFC Lau. IT IS SO ORDERED. Dated: June 18, 2008 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

United States District Court

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For the Northern District of California

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Case 3:07-cv-04946-JSW

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

MEI-FANG LISA ZHANG et al, 6 Plaintiff, 7 v. 8 WEI-MAN RAYMOND TSE et al, 9 Defendant. 10 /

Case Number: CV07-04946 JSW CERTIFICATE OF SERVICE

United States District Court

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For the Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on June 18, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Molly Lau Department of the Army A FSC, 70th BSB UNIT #15096 Camp Casey, APO AP 96224 Run Ping Zhou South China Investment Inc. 3567 Kimberly Road Cameron Park, CA 95682

Dated: June 18, 2008 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk