Li v. A Perfect Day Franchise, Inc

Filing 510

ORDER Regarding Proof of Service. Signed by Judge Lucy H. Koh on 5/22/2012. (lhklc2, COURT STAFF) (Filed on 5/22/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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GUIFU LI, MENG WANG, FANG DAI, LIN )
CUI, and ZHONG YU, on behalf of themselves )
and all others similarly situated,
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Plaintiffs,
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v.
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A PERFECT DAY FRANCHISE, INC., a
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California Corporation, et al.,
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Defendants.
)
)

Case No.: 10-CV-01189-LHK
ORDER REGARDING PROOF OF
SERVICE

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As a procedural prerequisite to granting default judgment, plaintiffs must first establish that

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the defendants were served with written notice of the application at least 7 days before the hearing

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on the default judgment. See Fed. R. Civ. P. 55(b)(2) (“If the party against whom a default

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judgment is sought has appeared personally or by a representative, that party or its representative

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must be served with written notice of the application at least 7 days before the hearing.”). Failure

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to satisfy Rule 55(b)(2)’s notice requirement is a serious procedural error usually justifying

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reversal on appeal or the setting aside of a default. In re Roxford Foods, Inc., 12 F.3d 875, 879

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(9th Cir. 1993).

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Case No.: 10-CV-01189-LHK
ORDER REGARDING PROOF OF SERVICE

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Defendants Huan Zou and Tailiang Li became ECF filers before the motion for default
judgment was filed by Plaintiffs on May 9, 2012. Zou and Tailiang Li therefore received notice of
the default judgment motion more than two weeks in advance of the hearing, thus meeting the
requirements of Rule 55(b)(2). Additionally, as Zou and Tailiang Li are the sole owners of Perfect
Day and Minjian, respectively, it is reasonable to conclude that Perfect Day and Minjian also
received notice of Plaintiffs’ application for default judgment.
Plaintiffs, however, have failed to file a proof of service of the motion for default judgment
as to defendants Jun Ma or Jin Qiu. By 5:00 p.m., Wednesday May 23, 2012, Plaintiffs shall either
file a proof of service establishing that Mr. Ma and Ms. Qiu were served in compliance with Rule
55(b)(2), or, if service has not yet been effected on these defendants, file a statement indicating
how they intend to proceed in light of this deficiency.
IT IS SO ORDERED.
Dated: May 22, 2012

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 10-CV-01189-LHK
ORDER REGARDING PROOF OF SERVICE