Integon Preferred Insurance v. Camacho, et al.

Filing 53

ORDER on Request for Entry of Default 50 , signed by District Judge Anthony W. Ishii on 6/16/17. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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INTEGON PREFERRED INSURANCE
CO.,
Plaintiff

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CASE NO. 1:16-CV-1496 AWI SAB
ORDER ON REQUEST FOR ENTRY OF
DEFEAULT

v.
ISABELLA ALVAREZ CAMACHO, et
al.,

(Doc. No. 50)

Defendants

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On June 13, 2017, Plaintiff filed a request for the Clerk of Court to a make an entry of

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default with respect fifteen Defendants. See Doc. No. 50. Of these fifteen Defendants, Plaintiff

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has shown the fourteen were served with a summons and a copy of the First Amended Complaint

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(“FAC”). One Defendant, Enrique Franco, was served with a summons and the Second Amended

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Complaint (“SAC”). See Doc. No. 43.

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Federal Rule of Civ. Procedure 5(a) states that, in the absence of an assertion of a “new

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claim for relief” against the non-appearing party, “[n]o service is required on a party who is in

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default for failing to appear.” Fed. R. Civ. P. 5(a)(2). For purposes of Rule 5(a)(2), a party who

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has failed to appear in the case is a party in “default for fail[ing] to appear,” even if the clerk has

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not yet made an entry of default in the docket. See Cutting v. Allenstown, 936 F.2d 18, 21 n.1 (1st

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Cir. 1991); Varnes v. Local 91, Glass Bottle Blowers Ass'n of U.S. and Canada, 674 F.2d 1365,

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1368 n.3 (11th Cir. 1982); Sharp v. Maricopa Cty., 2009 U.S. Dist. LEXIS 116746, *4 (D. Ariz.

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Nov. 6, 2009). Here, a review of the FAC and the SAC reveal that no additional claims were

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included in the SAC with respect to the fourteen other non-responding Defendants. Cf. Doc. No.

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10 with Doc. No. 37. Therefore, service of the SAC was required for Enrique Franco, but not

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necessary with respect to the fourteen other Defendants. See Fed. R. Civ. P. 5(a)(2); Aifang v.

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Velocity VIII, L.P., 2016 U.S. Dist. LEXIS 132633, *5 (C.D. Cal. Sept. 26, 2016); Rood v.

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Nelson, 2014 U.S. Dist. LEXIS 128723, *14-*15 (D. Nev. Sep. 15, 2014).

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Plaintiff has submitted an application that refers the Court to returns of summons/proofs of

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service in the docket, as well as a declaration by Plaintiff’s counsel that explains how the fifteen

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Defendants were served and when the time to file a response had lapsed. See Doc. No. 50. A

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review of the docket shows that fifteen Defendants were either personally served or served by

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leaving a copy of the summons and amended complaint with a person of suitable age. This is

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consistent with Federal Rules of Civil Procedure 4(e)(1), 4(e)(2)(A), and 4(e)(2)(B), California

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Code of Civil Procedure §§ 415.10 and 415.20, and Washington Revised Code § 4.28.080(16).

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See Doc. Nos. 17, 18, 20-30, 47-49; cf. Wright v. City of Las Vegas, 395 F.Supp.2d 789, 797-99

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(S.D. Iowa 2005). It appears to the Court that service of process was properly affected as to

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thirteen of the fifteen defendants under the appropriate federal, California, and Washington service

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laws.1
With respect to Defendant Jasmine Roxanne Dalton (“Jasmine”), she is alleged to be a

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minor. See Doc. No. 10 at ¶ 17. Plaintiff does bring suit against Jasmine through Robert D.

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Dalton, who is alleged to be her guardian ad litem. See id. Federal Rule of Civil Procedure 4(g)

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provides a minor in a United States judicial district “must be served by following state law for

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serving a summons or like process on such [minor] in an action brought in the courts of general

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jurisdiction of the state where service is made.” Fed. R. Civ. P. 4(g). The return of summons

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indicates that service was attempted to be served on Jasmine in Merced, California. See Doc. No.

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48. California Code of Civil Procedure § 416.60 provides: “A summons may be served on a

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minor by delivering a copy of the summons and the complaint to his parent, guardian, conservator,

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or similar fiduciary, or, if no such person can be found with reasonable diligence, to any person

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having the care or control of such minor or with whom he resides or by whom he is employed, and

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to the if he is at least 12 years of age.” Cal. Code Civ. P. § 416.60. Thus, if the minor is at least

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12 years old, both the minor and the minor’s parent, guardian, etc. must be served. See In re

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Orlando C., 186 Cal.App.4t h 1184, 1190 (2010). The Court is not satisfied that § 416.60 has been

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followed. First, it is not clear how old Jasmine is. Second, the Court has concerns with respect to

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the actual status of Robert Dalton. Although Robert Dalton is alleged to be a guardian ad litem,

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Several defendants were served in the state of Washington.

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there is no indication as to when or how Robert Dalton was appointed to be Jasmine’s guardian ad

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litem. Because the Court is not satisfied that § 416.60 has been sufficiently followed, an entry of

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default will not be entered at this time with respect to Jasmine. Plaintiff may file a new request of

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entry of default that adequately demonstrates compliance with Rule 4(g) and § 416.60.

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With to Defendant Angelica Maria Acevedo Cisneros, the proof of service is similar to all

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of the other proofs of service. See Doc. No. 30. The proof of service is on a pre-printed form.

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See id. The box for “substitute service” is checked and indicates that the summons and complaint

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were served on Adam Sanchez. See id. However, unlike other proofs of service, the “home” box

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(Box 5(b)(2)) on the form is not checked. See id. There are three options for the process server to

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identify the address, a business (Box 5(b)(1)), a home (Box 5(b)(2), and a unknown physical

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address (Box 5(b)(3)). See id. The proof of service for Angelica Maria Acevedo Cisneros is the

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only proof that does not indicate that the Defendant was served at her dwelling or usual place of

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abode. Therefore, the Court is not satisfied that service has been accomplished through Rule

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4(e)(2), California Code of Civil Procedure 415.20, or Washington Revised Code § 4.28.080(16).

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An entry of default will not be permitted with respect to Angelica Maria Acevedo Cisneros.

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Plaintiff may file a new request for entry of default that shows sufficient compliance with the

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relevant service rules.

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Because it appears that service of process has been made under Rule 4(e), California Civil

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Code §§ 415.10 and 415.20, and Washington Revised Code § 4.28.080(16), and the time to

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respond to the complaint has lapsed, the Court will direct the Clerk to make entries of judgment as

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required by Federal Rule of Civil Procedure 55(a) with respect to the thirteen of the fifteen

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defendants.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Plaintiff’s request for the Clerk to make an entry of default is GRANTED in part;

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2.

Pursuant to Federal Rule of Civil Procedure 55(a), the Clerk shall make an entry of default

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with respect to the following Defendants:
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a.

Enrique Franco;

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b.

Cesar Neri;

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c.

Selene Cati Silva;

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d.

Amairani Cati Silva;

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e.

Antonia Navarro-Sandoval;

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f.

Robert D. Dalton, individually and as successor in interest to the Estate of Christina

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Bautista Dalton;

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g.

James Keifas Miranda Bautista Dalton;

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h.

Jessica Hilda Bautista Vasquez;

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i.

Estevan Dalton Bautista;

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j.

Joshua Palacios;

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k.

Jose Refugio Acevedo Cisneros;

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l.

Yessica Acevedo Cisneros;

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m.

Fidelina Acevedo Cisneros;

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3.

Plaintiff’s request for an entry of default with respect to Defendant Jasmine Roxanne

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Dalton, a minor, is DENIED without prejudice to submission of documents and a new

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request for entry of default that sufficiently demonstrates compliance with Federal Rule of

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Civil Procedure 4(g) and California Code of Civil Procedure § 416.60; and

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4.

Plaintiff’s request for entry of default with respect to Defendant Angelica Maria Acevedo

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Cisneros is DENIED without prejudice to resubmission of documents and a new request

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for entry of default that demonstrates that service occurred at Defendant Angelica Maria

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Acevedo Cisneros’s dwelling or usual place of abode.

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IT IS SO ORDERED.
Dated: June 16, 2017
SENIOR DISTRICT JUDGE

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