Tuan Nguyen v. Marc Kelly et al

Filing 44

MINUTES (IN CHAMBERS)ORDER (1) STRIKING PLAINTIFF'S EX PARTE APPLICATION (Doc. 37 ); AND (2) STRIKING DEFENDANTS' MOTIONS TO DISMISS (Doc. 21 , 23 ) by Judge Josephine L. Staton. The Court determines that the appropriate course is to STR IKE Plaintiff's Ex Parte Application for failure to comply with Local Rules 7-19, 7-19.1, and the Court's Initial Standing Order, and on its own motion, STRIKE Defendants' motions to dismiss for failure to effect proper service. IT IS SO ORDERED. (see document for details). (dro)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 8:16-cv-1950-JLS-KESx
Title: Tuan Nguyen v. Marc Kelly, et al.

Date: January 18, 2017

Present: HONORABLE JOSEPHINE L. STATON, UNITED STATES DISTRICT JUDGE

Terry Guerrero
Deputy Clerk
ATTORNEYS PRESENT FOR PLAINTIFF:
Not Present

N/A
Court Reporter
ATTORNEYS PRESENT FOR DEFENDANT:
Not Present

PROCEEDINGS: (IN CHAMBERS) ORDER (1) STRIKING PLAINTIFF’S EX
PARTE APPLICATION (Doc. 37); AND (2) STRIKING
DEFENDANTS’ MOTIONS TO DISMISS (Doc. 21, 23)
Before the Court is an Ex Parte Application to Strike Pleading and Grant Defaults
filed by Plaintiff Tuan Nguyen. (Ex Parte App., Doc. 37.) Plaintiff specifically seeks to
strike the motions to dismiss filed by Defendants Bich An Thi Nguyen, Ngoc Bich Thi
Nguyen, Van Anh Thi Nguyen, Hoang Huy Tu, and Walter Emil Teague III, (Docs. 21,
23), for failure to properly serve them on Plaintiff. (See Ex Parte App.) For the
following reasons, the Court STRIKES Plaintiff’s Ex Parte Application and, on its own
motion, STRIKES Defendants’ motions to dismiss.
With respect to Defendants’ motions to dismiss, upon reviewing the docket, the
Court finds no proof of service was ever filed reflecting that these motions were properly
served on Plaintiff. Moreover, in response to Plaintiff’s Ex Parte Application,
Defendants make no statement or showing that they in fact served Plaintiff with the
motions. (See Teague Decl., Doc. 39.) Instead, they state only that they were not given
proper notice of Plaintiff’s Application. (Id. ¶¶ 3, 5.) The Court therefore concludes that
Plaintiff was never properly served with Defendants’ motions to dismiss.
With respect to Plaintiff’s Ex Parte Application, the Court notes that Plaintiff has
attached a proof of service to his Application purportedly showing that service was made
by mail, email, and phone on January 4, 2017. (See Ex Parte App.) Defendants assert
that this proof of service is false, and that Defendants’ counsel was in fact notified of the
application on January 11, 2017 when he received notice of the Application through
Pacer. (Teague Decl. ¶ 5.) Whether or not the proof of service states the true facts,
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____________________________________________________________________________
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 8:16-cv-1950-JLS-KESx
Title: Tuan Nguyen v. Marc Kelly, et al.

Date: January 18, 2017

Plaintiff has otherwise failed to comply with the requirements of Local Rules 7-19, 719.1, and Paragraph 3 of the Court’s Initial Standing Order relating to notice and service
of ex parte applications.
The Court is faced with a circumstance in which neither party followed the rules;
Plaintiff is seeking to strike two motions to dismiss filed by Defendants because
Defendants failed to properly serve those motions on Plaintiff, and Defendants oppose
Plaintiff’s Ex Parte Application because Plaintiff failed to properly serve and provide
notice to Defendants of his Application.
The Court determines that the appropriate course is to STRIKE Plaintiff’s Ex Parte
Application for failure to comply with Local Rules 7-19, 7-19.1, and the Court’s Initial
Standing Order, and on its own motion, STRIKE Defendants’ motions to dismiss for
failure to effect proper service.
IT IS SO ORDERED.
Initials of Preparer: tg

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