Wayne v. Sullivan Investments Incorporated et al

Filing 13

ORDER: Defendants' motion to strike Plaintiff's application for default (Doc. 11 ) is granted. Signed by Judge David G Campbell on 11/23/2015.(REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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D. Buddy Wayne,

No. CV-15-01473-PHX-DGC
Plaintiff,

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v.

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ORDER

Sullivan Investments Incorporated, et al.,

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Defendants.

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Defendants Sullivan Investments Corporation, Robert Sullivan, and Christopher

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Sullivan have filed a motion to strike Plaintiff’s application for default. Doc. 11. The

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Court will grant the motion.

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Plaintiff filed a pro se complaint on July 31, 2015. Doc. 1. Plaintiff allegedly

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served defendants on August 26, 2015, but the proof of service only indicates that it was

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served at the “place of business” without indicating who received the summons. Doc. 7.

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On September 25, 2015, Plaintiff filed an application for default alleging that Defendants

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had not filed a timely response. Doc. 8. On September 29, 2015, Defendants filed an

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answer (Doc. 9) and the motion to strike Plaintiff’s application for default (Doc. 11).

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Defendants’ motion alleges that they were not properly served as required by Rule 4

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because the summons did not issue until August 28, 2015, was served on a receptionist,

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and was never served on Robert and Christopher Sullivan. Doc. 11 at 2. Plaintiff has not

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opposed the motion to strike.

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The Court will grant Defendants’ motion. The proof of service states that the

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summons was served on August 26. Doc. 7. In reality, the Court issued the summons on

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August 28, making service on August 26 impossible. The proof of service also fails to

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identify who accepted service. Id. Furthermore, Robert and Christopher Sullivan were

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not served.

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Despite not being properly served, Defendants have voluntarily appeared and filed

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an answer. As a result, Plaintiff need not serve them. The Court has set a Rule 16 case

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management conference for December 16, 2015 (Doc. 12), and the case will proceed.

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The Court reminds Plaintiff that he must comply with all federal and local rules. The

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Federal Rules of Civil Procedure and the Court’s local rules of civil procedure are

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available on the Court’s website at www.azd.uscourts.gov. A copy of the Court’s local

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rules may also be obtained from the Clerk’s Office.

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IT IS ORDERED that Defendants’ motion to strike Plaintiff’s application for
default (Doc. 11) is granted.
Dated this 23rd day of November, 2015.

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