Accor Franchising North America, LLC v. Elohim Ent. Inc. et al

Filing 20

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/19/12 ORDERING 13 15 Clerk's Entry of Default are vacated; and 19 Motion for Default Judgment is denied without prejudice. (Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ACCOR FRANCHISING
NORTH AMERICA, LLC,

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Plaintiff,

No. 2:12-cv-0762 GEB CKD

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vs.
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ELOHIM ENT. INC., et al.,
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Defendants.

ORDER
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Plaintiff’s motion for default judgment is pending before the court.1 By order

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filed July 10, 2012, the District Judge assigned to this matter granted plaintiff’s request for

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service of summons by publication and ordered publication in the U-T San Diego for eight

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consecutive weeks. Dkt. no. 10. The proof of service indicates that publication occurred only for

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four consecutive weeks. Dkt. no. 11. Although publication for only four weeks is allowed under

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the incorporated state service rules, in this case, publication was ordered for eight weeks. See

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Fed. R. Civ. P. 4; Cal. Code Civ. P. § 415.50 (b) (court may order publication for longer period);

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The motion was not noticed for hearing and was not served on defendants. As discussed
below, the court will deny the motion for default judgment without prejudice. If the motion is
refiled, the matter should be noticed for hearing and must be accompanied by a proof of service
indicating service of the motion on defendants at their last known address.
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Cal. Gov’t Code § 6064 (standard publication is four weeks). Plaintiff’s service by publication is

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therefore defective and the defaults were erroneously entered.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk’s entry of defaults (dkt. nos. 13, 15) are vacated; and

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2. Plaintiff’s motion for default judgment (dkt. no. 19) is denied without

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prejudice.
Dated: December 19, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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