# Martins v. New West Investment Group

> District Court, S.D. California · January 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10082808

## Case

- **Court:** District Court, S.D. California
- **Decided:** January 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
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10 BRIAN MARTINS, Case No.: 18-cv-1731-AJB-LL
Plaintiff,
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ORDER:
12 v.
(1) GRANTING MOTION FOR
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NORTHWEST DEVELOPMENT CLARIFICATION BY
14 COMPANY, a California corporation DEFENDANTS STEVEN
d/b/a NEW WEST INVESTMENT CRESWELL, SCOTT JOHNSON,
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GROUP, INC., a California corporation, MELANIE KUSH, PEDRO ORSO-
16 et al., DELGADO, JEFF TAMARES, GARY
Defendants. HALBERT AND KEITH TILL
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(Doc. No. 103) and
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(2) GRANTING IN PART
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PLAINTIFF’S MOTION FOR
20 EXTENSION OF TIME TO FILE
APPEAL (Doc. No. 110)
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Before the Court is a motion for clarification filed by defendants, Steven Creswell,
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Scott Johnson, Melanie Kush, Pedro Orso-Delgado, Jeff Tamares, Gary Halbert, and Keith
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Till (collectively, “municipal defendants”) (Doc. No. 103), and a motion for extension of
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time to file a notice of appeal filed by pro se plaintiff, Brian Martins (Doc. No. 110). For
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the reasons set forth, the Court GRANTS the municipal defendants’ motion for
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clarification and GRANTS IN PART Plaintiff’s motion for extension of time.
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1 I. MOTION FOR CLARIFICATION
2 The instant motion for clarification arises from the Court’s March 2020 Order,
3 granting “Defendants Gary Halbert, Pedro Orso-Delgado, and Jeff Tamares’ motion to
4 dismiss Plaintiff’s first amended complaint” without leave to amend (Doc. No. 101 at 10),
5 and the corresponding Clerk Judgment, stating that “Defendants’ Motions to Dismiss are
6 Granted without leave to amend” (Doc. No. 102 at 1.) Although Cresswell, Johnson, Kush
7 and Till, had joined the motion to dismiss filed by the other municipal defendants, Halbert,
8 Orso-Delgado, Jeff Tamares, they were not explicitly named in the Court’s Order or
9 Judgment. The municipal defendants therefore request clarification on whether the Court
10 intended for its Order and Judgment to apply equally to Cresswell, Johnson, Kush and Till.
11 The Court answers in the affirmative.
12 By way of background, on April 15, 2019, Plaintiff filed his FAC, naming several
13 defendants, including the municipal defendants. On August 1, 2019, Halbert,
14 Orso-Delgado and Tamares moved to dismiss Plaintiff’s FAC. (Doc. No. 24.) A month
15 later, Cresswell, Johnson, Kush and Till, filed notices of joinder to the previously filed
16 motion to dismiss. (Doc. Nos. 63, 67.) In those documents, Cresswell, Johnson, Kush and
17 Till fully incorporated the factual and legal arguments set forth in Halbert, Orso-Delgado
18 and Tamares’ motion to dismiss because those arguments applied equally to Plaintiffs’
19 claims against them. (Doc. Nos. 63 at 2, 5; 67 at 2, 4.)
20 To the extent that the Court’s March 2020 Order on Halbert, Orso-Delgado and
21 Tamares’ motion to dismiss is ambiguous as to whether the conclusions therein apply with
22 equal force to the other municipal defendants, the Court hereby clarifies that it does.
23 Because Cresswell, Johnson, Kush and Till joined Halbert, Orso-Delgado and Tamares’
24 motion to dismiss, the Court’s Order granting the motion to dismiss, and the judgment
25 resulting therefrom, extends to Cresswell, Johnson, Kush and Till. Accordingly, the Court
26 GRANTS the municipal defendants’ motion and clarifies that the March 2020 Order and
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1 Judgment apply equally to Cresswell, Johnson, Kush and Till. (Doc. No. 103.)
2 II. MOTION FOR EXTENSION OF TIME TO FILE APPEAL
3 Turning to the next motion, on May 4, 2020, Plaintiff filed an ex parte motion for a
4 30-day extension of time to file his notice of appeal of the Court’s Order dismissing his
5 FAC without leave to amend (Doc. No. 110.) According to Plaintiff, the reason he seeks
6 additional time to file a notice of appeal is the public health emergency concerning
7 COVID-19, which has caused the closing of public law libraries, upon which he depends
8 for legal research and resources, and has limited his ability to travel.2 (Id. at 2.) The only
9 defendants to file an opposition to Plaintiff’s request are New West Investment Group, Inc.,
10 Gregory M. Brown, Sr., Gregory M. Brown, Jr., Robert Holland, Bobbi Pearson, and Oak
11 Tree Escrow (collectively, “opposing defendants”). In their response, the opposing
12 defendants argue that (1) Plaintiff’s request is untimely, (2) this court lacks authority to
13 grant relief because the request should have been made via a noticed motion under the local
14 rules as opposed to an ex parte application, (3) no good cause or excusable neglect exists,
15 and (4) they deserve repose on Plaintiffs’ allegations.
16 While the opposing defendants’ arguments are well-taken, it is not lost on the Court
17 that Plaintiff is a pro se litigant attempting, in good faith, to pursue his claims in the midst
18 of a global pandemic. Considering the established principle that “[a] document filed pro se
19 is ‘to be liberally construed,’” Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Court
20 declines to deny Plaintiff’s request on the technical ground asserted—namely, that it should
21 have been filed as a noticed motion instead of an ex parte application. Rather, the Court
22 finds that Plaintiff’s limited access to legal materials and resources due to lockdowns
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1 Plaintiff’s opposition to the motion for clarification is untimely and does not address the issues raised by
25 the municipal defendants. Instead, Plaintiff “proposes that Defendants ‘motions to dismiss’ remained [sic]
granted and that the Court altered or amended [sic] the Judgment and Order to enable Plaintiff to file his
26 Second Amended Complaint, within 14 days of such order.” (Doc. No. 113 at 5.) However, as stated in
the Court’s Order dismissing his FAC, allowing Plaintiff leave to amend would be futile. (Doc. No. 101
27 at 11.)
2 COVID-19, also known as SARS-CoV-2, is a newly discovered coronavirus infectious disease, for which
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1 ||resulting from COVID-19, as well as the health and travel concerns relating thereto,
2 ||amount to good cause that merits relief pursuant to the Federal Rules of Appellate
3 || Procedure. See Fed. R. App. P. 4 4(a)(4)(A)Gi) (“The district court may extend the time to
4 a notice of appeal if . . . regardless of whether its motion is filed before or during the
5 ||30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable
6 neglect or good cause.”)
7 As the opposing defendants point out, however, filing a notice to appeal generally
8 entails little to no research. (Doc. No. 107 at 4.) And with an internet connection, Plaintiff
9 ||can avail himself of the Notice of Appeal form on the Ninth Circuit website, as well as the
10 || public law library’s online services for any research. (/d. at 4-5.) Moreover, the Court is
11 cognizant that the time to file a notice of appeal in this case expired a number of months
12 ||ago. Consequently, in the interest of fairness and to limit further delay on these
13 || proceedings, the Court allows Plaintiff a two-week extension from the date of this Order
14 |/to file his notice of appeal. Thus, the Court GRANTS IN PART Plaintiffs motion for an
15 extension. (Doc. No. 110.)
16 HI. CONCLUSION
17 Based on the foregoing, the Court GRANTS the municipal defendants’ motion for
18 || clarification and GRANTS IN PART Plaintiffs motion for an extension to file a notice
19 || of appeal. (Doc. Nos. 103, 110). Accordingly, the Court clarifies that the March 2020 Order
20 ||and Judgment applies to Cresswell, Johnson, Kush and Till, and that Plaintiff is permitted
21 ||an extension to file a notice of appeal up to and including January 22, 2021. Any further
22 || discretionary requests for extensions before this Court will be denied, absent extraordinary
23 || circumstances that are detailed and specifically corroborated by documentary evidence.
24 IT IS SO ORDERED.
25 || Dated: January 8, 2021 | ZS Zz : Le
26 Hon. Anthony J.Battaglia
27 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10082808. Public record. Not legal advice.