Joe Hand Promotions, Inc. v. Washington

Filing 34

ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/26/14 DENYING WITHOUT PREJUDICE 32 Motion for Default Judgment and VACATING 31 Clerk's Entry of Default. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOE HAND PROMOTIONS, INC.,

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No. 2:11-cv-1213 KJM CKD

Plaintiff,
v.

ORDER

CEDRIC WASHINGTON,
Defendant.

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Plaintiff’s motion for default judgment is pending before the court. Default was entered

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against defendant on June 23, 2014. ECF No. 31. The court previously vacated entry of default

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against defendant (ECF No. 9) because there was no proof that defendant had been properly

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served. ECF No. 18. As the court noted in its prior order:

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The proof of service, upon which default was entered, indicates that
defendant was served by substituted service at an address of 254
Redstone Circle, Suisun City, CA 94585. Dkt. no. 7. The process
server indicated on the proof of service that the “[b]usiness address
was not known at the time of service.” This averment is plainly
contradicted by the allegations of the complaint, which sets forth
defendant’s business address. See dkt. no. 1 at ¶ 7. A review of the
WestLaw PeopleFinder database indicates that although a Cedric
Marvell Washington resides at the Suisun City address, there is also
an individual listed with that same name having an address of 6590
Stockton Blvd., Sacramento, CA 95823, which is the address
alleged in the complaint as the location of the infringing business.
There is no connection evident, either on the record before the court
or in the WestLaw database, between these two individuals or any
indication that they are one and the same. In the absence of further
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evidence that defendant has been properly served, the court cannot
recommend entry of default judgment.

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ECF No. 18, Order filed September 26, 2012 at 1:17-2:3.
In plaintiff’s new request for entry of default, plaintiff again references the previously

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filed proof of service. In addition, plaintiff submits the affidavit of plaintiff’s counsel (ECF No.

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30-1) but the affidavit offers no evidence curing the deficiencies with respect to proof of service

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of summons previously noted. Again, the court cannot recommend entry of default judgment.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The motion for default judgment (ECF No. 32) is denied without prejudice.

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2. The entry of default (ECF No. 31) is vacated.
Dated: June 26, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 joehand-washington.def

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