Hamilton v. Shoopman et al

Filing 23

ORDER re 19 22 22 . Granting 10 Plaintiff's motion to dismiss defendants Pinkston and Coleman. Denying 22 Plaintiff's request for entry of default and for entry of default judgment against the remaining three defendants. No lat er than August 10, 2012, plaintiff must (a) file a proof of service showing that he has caused the summons and amended complaint to be served on each defendant or (b) show cause why this action should not be dismissed for failure to serve process within 120 days of the filing of the complaint.(Illston, Susan) (Filed on 6/28/2012) Modified on 6/29/2012 (ysS, COURT STAFF).

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

BERNARD LEE HAMILTON,

9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17

No. C 10-3682 SI (pr)

Plaintiff,

ORDER

v.
COLLEEN SHOOPMAN; et al.,
Defendants.
/
The court ordered plaintiff, who is not proceeding as a pauper, to serve process on five
defendants by October 14, 2011. As of today, no defendant has appeared in this action.
Plaintiff's motion to dismiss defendants Pinkston and Coleman is GRANTED. (Docket
# 19.) Defendants Pinkston and Coleman are dismissed from this action.

18

Plaintiff's request for entry of default and for entry of default judgment against the

19

remaining three defendants is DENIED. (Docket # 22.) Federal Rule of Civil Procedure 55(b)

20

contemplates that a default judgment may be sought after default has been entered against a

21

defendant. See also New York Life Ins. Co. v. Brown, 84 F.3d 137 (5th Cir. 1996) ("After

22

defendant's default has been entered, plaintiff may apply for a judgment based on such default.

23

This is a default judgment."); Lee v. Brotherhood of Maintenance of Way Employees, 139 F.R.D.

24

376, 380 (D. Minn. 1991). Insofar as plaintiff sought default judgment, his motion was

25

premature because default had not been entered against any defendant. Plaintiff's request for

26

entry of default will be denied because plaintiff failed to demonstrate to the satisfaction of the

27

court that defendants Shoopman, Van Blarcom and Harless properly had been served with

28

process in this action. Plaintiff submitted proofs of service in which a Richard Phillips stated
that he had "served summons on Tim Rossetti, Litigation coordinator, who is authorized to

1

accept summons on behalf of San Quentin prison staff." Docket # 20. Phillips did not identify

2

the date on which the service was made, did not identify the method by which he had served the

3

summons, and did not state whether he had served the amended complaint with the summons

4

for each of the three defendants. Without sufficient information that defendants properly were

5

served with process, default is not proper. The motion for entry of default and default judgment

6

is DENIED.
No later than August 10, 2012, plaintiff must (a) file a proof of service showing that he

8

has caused the summons and amended complaint to be served on each defendant or (b) show

9

cause why this action should not be dismissed for failure to serve process within 120 days of the

10
United States District Court
For the Northern District of California

7

filing of the complaint. See Fed. R. Civ. P. 4(l)-(m). If he does neither, the action will be

11

dismissed. If plaintiff files a proof of service showing that the remaining defendants have been

12

served, he also may file a new request for entry of default.

13
14

IT IS SO ORDERED.
Dated: June 28, 2012

_______________________
SUSAN ILLSTON
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28
2