Sony BMG Music Entertainment, et al. v. Cody

Filing 24

ORDER VACATING Hearing (1/16/2009) on Plaintiff's MOTION for Default Judgment [Doc. 17]. ORDER DIRECTING Further Briefing By Plaintiffs in the Event of Plaintiff's Refiling the Motion. signed by Judge Sandra M. Snyder on 1/14/2009. (Herman, H)

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1 2 3 4 5 6 7 8 SONY BMG MUSIC ENTERTAINMENT, ) 1:08-cv-0590-LJO-SMS a Delaware general ) 9 partnership, et al., ) ORDER VACATING HEARING ON ) PLAINTIFF'S MOTION FOR DEFAULT 10 Plaintiffs, ) JUDGMENT (DOC. 17) v. ) 11 ) ORDER DIRECTING FURTHER BRIEFING CODY HEINSOHN, aka HEINSOHN ) BY PLAINTIFFS IN THE EVENT OF 12 CODY, ) PLAINTIFF'S REFILING THE MOTION ) 13 Defendant. ) ) 14 ) 15 Plaintiffs are proceeding with a civil action in this Court. 16 The matter has been referred to the Magistrate Judge pursuant to 17 28 U.S.C. 636(b) and Local Rules 72-302(c)(19) and 72-303. 18 Plaintiffs' motion for a default judgment against Defendant 19 Cody Heinsohn, filed on October 14, 2008, was set to be heard on 20 January 16, 2009. The Court has reviewed the moving papers. 21 Fed. R. Civ. P. 5(d) requires that any paper after the 22 complaint that is required to be served must be filed, together 23 with a certificate of service, within a reasonable time after 24 service. Local Rule 5-135(c) expressly requires that except for 25 ex parte matters, a paper document shall not be submitted for 26 filing unless it is accompanied by a proof of service. Further, 27 it expressly requires that proof of service shall be under 28 1 U N I T E D STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 1 penalty of perjury. 2 Here, the proofs of service submitted by Plaintiff with 3 respect to the motion for default judgment and attachments, and 4 the order granting Plaintiffs' ex parte application to continue 5 the hearing on the motion for default judgment, do not contain 6 declarations under penalty of perjury. See, 28 U.S.C. 1746. 7 Accordingly, legally sufficient proof of service of the pertinent 8 moving papers and legally sufficient notice of the hearing are 9 lacking. 10 Therefore, the hearing on the motion for default judgment IS 11 VACATED without prejudice to Plaintiffs' renoticing and refiling 12 the motion with legally sufficient proofs of service. 13 Further, the Court notes that there are additional defective 14 proofs of service of other documents that appear to be pertinent 15 to the question of adequate notice to Defendant of various 16 matters, including but not limited to the declaration of Zavala 17 in support of request to enter default (Doc. 14-2) and the 18 certificate of service of the clerk's entry of default (Doc. 16). 19 Should Plaintiffs refile their motion for default judgment 20 without correcting these additional defects, Plaintiffs ARE 21 DIRECTED to provide legal authority and complete analysis 22 concerning the legal sufficiency of notice to Defendant in 23 connection with any of the matters to which the defective proofs 24 of service relate. Failure to do so will result in the matter 25 being dropped from the calendar. 26 IT IS SO ORDERED. 27 Dated: icido3 28 January 14, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 2

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