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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1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 5 INTEGON PREFERRED INSURANCE CO., Plaintiff 6 7 8 9 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 10 11 On June 13, 2017, Plaintiff filed a request for the Clerk of Court to a make an entry of 12 default with respect fifteen Defendants. See Doc. No. 50. Of these fifteen Defendants, Plaintiff 13 has shown the fourteen were served with a summons and a copy of the First Amended Complaint 14 (“FAC”). One Defendant, Enrique Franco, was served with a summons and the Second Amended 15 Complaint (“SAC”). See Doc. No. 43. 16 Federal Rule of Civ. Procedure 5(a) states that, in the absence of an assertion of a “new 17 claim for relief” against the non-appearing party, “[n]o service is required on a party who is in 18 default for failing to appear.” Fed. R. Civ. P. 5(a)(2). For purposes of Rule 5(a)(2), a party who 19 has failed to appear in the case is a party in “default for fail[ing] to appear,” even if the clerk has 20 not yet made an entry of default in the docket. See Cutting v. Allenstown, 936 F.2d 18, 21 n.1 (1st 21 Cir. 1991); Varnes v. Local 91, Glass Bottle Blowers Ass'n of U.S. and Canada, 674 F.2d 1365, 22 1368 n.3 (11th Cir. 1982); Sharp v. Maricopa Cty., 2009 U.S. Dist. LEXIS 116746, *4 (D. Ariz. 23 Nov. 6, 2009). Here, a review of the FAC and the SAC reveal that no additional claims were 24 included in the SAC with respect to the fourteen other non-responding Defendants. Cf. Doc. No. 25 10 with Doc. No. 37. Therefore, service of the SAC was required for Enrique Franco, but not 26 necessary with respect to the fourteen other Defendants. See Fed. R. Civ. P. 5(a)(2); Aifang v. 27 Velocity VIII, L.P., 2016 U.S. Dist. LEXIS 132633, *5 (C.D. Cal. Sept. 26, 2016); Rood v. 28 Nelson, 2014 U.S. Dist. LEXIS 128723, *14-*15 (D. Nev. Sep. 15, 2014). 1 Plaintiff has submitted an application that refers the Court to returns of summons/proofs of 2 service in the docket, as well as a declaration by Plaintiff’s counsel that explains how the fifteen 3 Defendants were served and when the time to file a response had lapsed. See Doc. No. 50. A 4 review of the docket shows that fifteen Defendants were either personally served or served by 5 leaving a copy of the summons and amended complaint with a person of suitable age. This is 6 consistent with Federal Rules of Civil Procedure 4(e)(1), 4(e)(2)(A), and 4(e)(2)(B), California 7 Code of Civil Procedure §§ 415.10 and 415.20, and Washington Revised Code § 4.28.080(16). 8 See Doc. Nos. 17, 18, 20-30, 47-49; cf. Wright v. City of Las Vegas, 395 F.Supp.2d 789, 797-99 9 (S.D. Iowa 2005). It appears to the Court that service of process was properly affected as to 10 thirteen of the fifteen defendants under the appropriate federal, California, and Washington service 11 laws.1 With respect to Defendant Jasmine Roxanne Dalton (“Jasmine”), she is alleged to be a 12 13 minor. See Doc. No. 10 at ¶ 17. Plaintiff does bring suit against Jasmine through Robert D. 14 Dalton, who is alleged to be her guardian ad litem. See id. Federal Rule of Civil Procedure 4(g) 15 provides a minor in a United States judicial district “must be served by following state law for 16 serving a summons or like process on such [minor] in an action brought in the courts of general 17 jurisdiction of the state where service is made.” Fed. R. Civ. P. 4(g). The return of summons 18 indicates that service was attempted to be served on Jasmine in Merced, California. See Doc. No. 19 48. California Code of Civil Procedure § 416.60 provides: “A summons may be served on a 20 minor by delivering a copy of the summons and the complaint to his parent, guardian, conservator, 21 or similar fiduciary, or, if no such person can be found with reasonable diligence, to any person 22 having the care or control of such minor or with whom he resides or by whom he is employed, and 23 to the if he is at least 12 years of age.” Cal. Code Civ. P. § 416.60. Thus, if the minor is at least 24 12 years old, both the minor and the minor’s parent, guardian, etc. must be served. See In re 25 Orlando C., 186 Cal.App.4t h 1184, 1190 (2010). The Court is not satisfied that § 416.60 has been 26 followed. First, it is not clear how old Jasmine is. Second, the Court has concerns with respect to 27 the actual status of Robert Dalton. Although Robert Dalton is alleged to be a guardian ad litem, 28 1 Several defendants were served in the state of Washington. 2 1 there is no indication as to when or how Robert Dalton was appointed to be Jasmine’s guardian ad 2 litem. Because the Court is not satisfied that § 416.60 has been sufficiently followed, an entry of 3 default will not be entered at this time with respect to Jasmine. Plaintiff may file a new request of 4 entry of default that adequately demonstrates compliance with Rule 4(g) and § 416.60. 5 With to Defendant Angelica Maria Acevedo Cisneros, the proof of service is similar to all 6 of the other proofs of service. See Doc. No. 30. The proof of service is on a pre-printed form. 7 See id. The box for “substitute service” is checked and indicates that the summons and complaint 8 were served on Adam Sanchez. See id. However, unlike other proofs of service, the “home” box 9 (Box 5(b)(2)) on the form is not checked. See id. There are three options for the process server to 10 identify the address, a business (Box 5(b)(1)), a home (Box 5(b)(2), and a unknown physical 11 address (Box 5(b)(3)). See id. The proof of service for Angelica Maria Acevedo Cisneros is the 12 only proof that does not indicate that the Defendant was served at her dwelling or usual place of 13 abode. Therefore, the Court is not satisfied that service has been accomplished through Rule 14 4(e)(2), California Code of Civil Procedure 415.20, or Washington Revised Code § 4.28.080(16). 15 An entry of default will not be permitted with respect to Angelica Maria Acevedo Cisneros. 16 Plaintiff may file a new request for entry of default that shows sufficient compliance with the 17 relevant service rules. 18 Because it appears that service of process has been made under Rule 4(e), California Civil 19 Code §§ 415.10 and 415.20, and Washington Revised Code § 4.28.080(16), and the time to 20 respond to the complaint has lapsed, the Court will direct the Clerk to make entries of judgment as 21 required by Federal Rule of Civil Procedure 55(a) with respect to the thirteen of the fifteen 22 defendants. 23 24 ORDER 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. The Plaintiff’s request for the Clerk to make an entry of default is GRANTED in part; 27 2. Pursuant to Federal Rule of Civil Procedure 55(a), the Clerk shall make an entry of default 28 with respect to the following Defendants: 3 1 a. Enrique Franco; 2 b. Cesar Neri; 3 c. Selene Cati Silva; 4 d. Amairani Cati Silva; 5 e. Antonia Navarro-Sandoval; 6 f. Robert D. Dalton, individually and as successor in interest to the Estate of Christina 7 Bautista Dalton; 8 g. James Keifas Miranda Bautista Dalton; 9 h. Jessica Hilda Bautista Vasquez; 10 i. Estevan Dalton Bautista; 11 j. Joshua Palacios; 12 k. Jose Refugio Acevedo Cisneros; 13 l. Yessica Acevedo Cisneros; 14 m. Fidelina Acevedo Cisneros; 15 3. Plaintiff’s request for an entry of default with respect to Defendant Jasmine Roxanne 16 Dalton, a minor, is DENIED without prejudice to submission of documents and a new 17 request for entry of default that sufficiently demonstrates compliance with Federal Rule of 18 Civil Procedure 4(g) and California Code of Civil Procedure § 416.60; and 19 4. Plaintiff’s request for entry of default with respect to Defendant Angelica Maria Acevedo 20 Cisneros is DENIED without prejudice to resubmission of documents and a new request 21 for entry of default that demonstrates that service occurred at Defendant Angelica Maria 22 Acevedo Cisneros’s dwelling or usual place of abode. 23 24 25 IT IS SO ORDERED. Dated: June 16, 2017 SENIOR DISTRICT JUDGE 26 27 28 4

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