Inn S.F. Enterprise, Inc. v. Ninth Street Lodging, LLC

Filing 21

ORDER SETTING ASIDE 15 ENTRY OF DEFAULT. The Court grants 18 Motion to Set Aside Default and orders service. (jdlc1S, COURT STAFF) (Filed on 5/20/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 INN S.F. ENTERPRISE, INC., Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 16-cv-00599-JD ORDER RE DEFAULT AND SERVICE v. Re: Dkt. No. 18 NINTH STREET LODGING, LLC, Defendant. 12 Defendant Ninth Street Lodging, LLC (“Ninth Street”), asks the Court to set aside the 13 default entered by the Clerk on May 3, 2016 (Dkt. No. 15). Dkt. No. 18. As Ninth Street has 14 shown, plaintiff Inn S.F. Enterprise, Inc. (“Inn S.F.”) failed to perfect service under Federal Rule 15 of Civil Procedure 4 by failing to serve a summons with the complaint. See Fed. R. Civ. P. 4(c)(1) 16 (“A summons must be served with a copy of the complaint. The plaintiff is responsible for having 17 the summons and complaint served within the time allowed by Rule 4(m) and must furnish the 18 necessary copies to the person who makes service.”). As of today, no docket entry shows that Inn 19 S.F. has even sought to have a summons issued by the Court, let alone served it. Faced with these 20 facts, and despite its counsel’s prior declaration under penalty of perjury to the Clerk that service 21 was perfected, see Dkt. No. 14-1 ¶ 4, Exh. 2, Inn S.F. does not oppose setting aside the default. 22 Dkt. No. 20. Consequently, the Court vacates the Clerk’s entry of default (Dkt. No. 15) for good 23 cause shown, pursuant to Rule 55(c). 24 In the statement of non-opposition, Inn S.F. asks that Ninth Street agree “to save the 25 expense of serving a summons and complaint” by signing a waiver of the service of summons. 26 Dkt. No. 20 at 1. This request was filed on May 12, 2016, which is 98 days after the filing of the 27 complaint on February 4, 2016. Service of the complaint was thus already overdue under Rule 28 4(m), which requires a complaint to be served within 90 days or risk dismissal of the case. Inn 1 S.F. provides no explanation or good cause for failing to serve Ninth Street within the time and in 2 the manner mandated by the Federal Rules of Civil Procedure. 3 But because the Court favors the disposition of cases on the merits, Inn S.F. has one final 4 opportunity to serve the complaint properly. Inn S.F. should obtain a summons from the Clerk of 5 the Court and serve the summons and complaint on Ninth Street no later than June 3, 2016. The 6 service must comply in all respects with the Federal Rules of Civil Procedure and the Court’s 7 Civil Local Rules. If Inn S.F. fails to comply with this order, or any of the applicable procedural 8 rules, or fails to serve Ninth Street properly by June 3, 2016, the Court will dismiss this action 9 under Rule 4 or for failure to prosecute. See Fed. R. Civ. P. 41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the 11 United States District Court Northern District of California 10 action or any claim against it.”) 12 IT IS SO ORDERED. 13 Dated: May 20, 2016 14 15 JAMES DONATO United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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