Wayne v. Sullivan Investments Incorporated et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
D. Buddy Wayne,
Sullivan Investments Incorporated, et al.,
Defendants Sullivan Investments Corporation, Robert Sullivan, and Christopher
Sullivan have filed a motion to strike Plaintiff’s application for default. Doc. 11. The
Court will grant the motion.
Plaintiff filed a pro se complaint on July 31, 2015. Doc. 1. Plaintiff allegedly
served defendants on August 26, 2015, but the proof of service only indicates that it was
served at the “place of business” without indicating who received the summons. Doc. 7.
On September 25, 2015, Plaintiff filed an application for default alleging that Defendants
had not filed a timely response. Doc. 8. On September 29, 2015, Defendants filed an
answer (Doc. 9) and the motion to strike Plaintiff’s application for default (Doc. 11).
Defendants’ motion alleges that they were not properly served as required by Rule 4
because the summons did not issue until August 28, 2015, was served on a receptionist,
and was never served on Robert and Christopher Sullivan. Doc. 11 at 2. Plaintiff has not
opposed the motion to strike.
The Court will grant Defendants’ motion. The proof of service states that the
summons was served on August 26. Doc. 7. In reality, the Court issued the summons on
August 28, making service on August 26 impossible. The proof of service also fails to
identify who accepted service. Id. Furthermore, Robert and Christopher Sullivan were
Despite not being properly served, Defendants have voluntarily appeared and filed
an answer. As a result, Plaintiff need not serve them. The Court has set a Rule 16 case
management conference for December 16, 2015 (Doc. 12), and the case will proceed.
The Court reminds Plaintiff that he must comply with all federal and local rules. The
Federal Rules of Civil Procedure and the Court’s local rules of civil procedure are
available on the Court’s website at www.azd.uscourts.gov. A copy of the Court’s local
rules may also be obtained from the Clerk’s Office.
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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