Gates v. Superior Loan Servicing

Filing 32

ORDER ON 31 MOTION TO CONTINUE CMC, REQUIRING IMMEDIATE SERVICE OF PROCESS. Show Cause Response due by 11/22/2021. Signed by Judge William H. Orrick on 11/18/2021. (jmd, COURT STAFF) (Filed on 11/19/2021)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 TYRIOUS GATES, 7 Plaintiff, 8 v. 9 SUPERIOR LOAN SERVICING, 10 Defendant. 11 United States District Court Northern District of California Case No. 3:21-cv-06369-WHO ORDER ON MOTION TO CONTINUE CMC, REQUIRING IMMEDIATE SERVICE OF PROCESS Re: Dkt. No. 31 12 Plaintiff Tyrious Gates moves to continue the case management conference (“CMC”) that 13 14 he says is set for today, November 18, 2021. Dkt. No. 31. There was no CMC set for today, so 15 his motion is moot. (It appears that he got that date from the initial case management order issued 16 when the case was before Judge Hixson; the order reassigning the case vacated that date.) Separately, Gates’s motion revealed that he “has not formally served” defendant Superior 17 18 Loan Servicing (“Superior”). Dkt. No. 31 (emphasis in original). That is deeply troubling. After 19 Gates filed his motion for a temporary restraining order (“TRO”), I set a hearing on it and wrote 20 that “[c]ounsel for the plaintiff is ORDERED to serve the defendant with process and a copy of 21 this Order immediately.” Dkt. No. 12 (emphasis added). That was more than two months ago. 22 Gates filed an affidavit attesting that he effectuated service; it is now plain that he only meant 23 service of the TRO itself, not service of process, despite my clear order. See Dkt. No. 14. Service 24 of process is no mere formality, it permits a court to assert personal jurisdiction over a defendant. 25 Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986), amended, 807 F.2d 1514 (9th Cir. 1987).1 Gates is ORDERED to serve Superior with process under Federal Rule of Civil Procedure 26 27 28 1 Superior has appeared in this action and opposed the preliminary injunction with multiple briefs, but it did not rely on a lack of service of process or personal jurisdiction in opposing it. 1 4 immediately; he or his counsel is ORDERED to file a declaration under penalty of perjury on 2 the docket stating that service has been dispatched by 5:00 pm on November 22, 2021. A failure 3 to do either may result in dissolving the preliminary injunction. 4 IT IS SO ORDERED. 5 Dated: November 19, 2021 6 7 William H. Orrick United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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