Lenk v. Monolithic Power Systems, Inc. et al

Filing 29

ORDER DENYING 28 LEAVE TO FILE MOTION FOR RECONSIDERATION. Signed by Judge Beth Labson Freeman on 1/18/2017. (blflc2S, COURT STAFF) (Filed on 1/18/2017)

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

SAN JOSE DIVISION

4
5

KENNETH L. LENK,

Case No. 16-cv-02625-BLF

Plaintiff,
6
v.

ORDER DENYING LEAVE TO FILE
MOTION FOR RECONSIDERATION

7
8
9

MONOLITHIC POWER SYSTEMS, INC.,
et al.,

[Re: ECF 28]

Defendants.

10

United States District Court
Northern District of California

11

On November 15, 2016, Plaintiff Kenneth Lenk filed an application for entry of default

12

judgment against Defendants Monolithic Power Systems, Inc. (“Monolithic”) and Maurice

13

Sciammas (collectively, “Defendants”). ECF 11. The Clerk’s Office declined to enter default as

14

to both Defendants. ECF 16, 17. On November 17, 2016, this Court issued an order to show

15

cause (“OSC”) why this case should not be dismissed for Lenk’s failure to serve Defendants

16

within the time required by Federal Rule of Civil Procedure 4. ECF 18. In his timely response to

17

the OSC, Lenk detailed his attempts to serve Defendants and stated his belief that he had complied

18

with the service requirements of Rule 4. ECF 19. On December 7, 2016, this Court discharged

19

the OSC and extended the deadline for Lenk to serve Defendants after finding that Plaintiff had

20

not yet properly served Defendants. See generally id.

21

Now before the Court is Plaintiff’s motion for reconsideration of this Court’s declination to

22

enter default as to Monolithic and Mr. Sciammas. See Mot., ECF 28. Civil Local Rule 7-9

23

provides that “[b]efore the entry of a judgment adjudicating all of the claims and the rights and

24

liabilities of all the parties in a case, any party may make a motion before a Judge requesting that

25

the Judge grant the party leave to file a motion for reconsideration of any interlocutory order . . . .

26

No party may notice a motion for reconsideration without first obtaining leave of Court to file the

27

motion.” Civ. L.R. 7-9(a). In light of his pro se status, the Court construes Lenk’s motion as a

28

motion for leave to file a motion for reconsideration and the motion for reconsideration itself. In

1

this order, the Court addresses only the motion for leave to file a motion for reconsideration,

2

which it DENIES.
A motion for reconsideration may be made on three grounds: (1) a material difference in

3
4

fact or law exists from that which was presented to the court, which, in the exercise of reasonable

5

diligence, the moving party did not know at the time of the order for which reconsideration is

6

sought; (2) the emergence of new material facts or a change of law; or (3) a manifest failure by the

7

court to consider material facts or dispositive legal arguments. Civ. L.R. 7-9(b). The moving

8

party may not reargue any written or oral argument previously asserted to the court. Civ. L.R. 7-

9

9(c).

10

In his motion, Lenk makes the same argument he made in his response to the OSC—that

United States District Court
Northern District of California

11

he believes he has properly served Defendants under California state law, in compliance with

12

Federal Rule of Civil Procedure 4(e). See generally Mot. Specifically, Plaintiff contends that the

13

Court was incorrect in its conclusion that he had not properly served Defendants. Plaintiff

14

contends that the U.S. Postal Service and the Federal Rules of Civil Procedure have undergone

15

“significant changes and improvements,” in recent years, and the Federal Rules and California law

16

allow for service by mail. However, the cases upon which Plaintiff relies are unavailing.

17

Citing Johnson & Johnson v. Superior Court, 38 Cal. 3d 243 (1985), Lenk argues that

18

service by mail has been accepted or even preferred in some instances. Mot. 3. That case,

19

however, is inapplicable, as the California Supreme Court was interpreting Cal. Civ. Proc. Code §

20

415.40, which deals with service on persons outside of California. Here, both Defendants are

21

located in California, and thus, neither section 415.40 nor Johnson & Johnson is relevant.

22

Plaintiff also cites Cruz v. Favor America, Inc., 146 Cal. App. 4th 488 (Ct. App. 2007),

23

arguing that it supports his contention that service by mail is sufficient. Mot. 3. However, Cruz

24

states that service by mail is completed “when the return receipt is signed by a person so

25

authorized by the defendant.” 146 Cal. App. 4th at 498 (citation and internal quotation marks

26

omitted). As previously explained, see ECF 22, Plaintiff has not filed an executed

27

acknowledgement form, and thus, the Court has no evidence that Plaintiff has complied with the

28
2

1

statutory requirements.1 The remainder of the cases upon which Plaintiff relies are from courts

2

outside of California, and are therefore not binding upon this Court.
Accordingly, because Plaintiff has not shown (1) a material difference in fact or law exists

4

from that which was presented to the court (2) the emergence of new material facts or a change of

5

law; or (3) a manifest failure by the court to consider material facts or dispositive legal arguments,

6

the Court DENIES Plaintiff’s request for leave to file a motion for reconsideration. In accordance

7

with the Court’s prior order, Plaintiff shall have until February 3, 2017 to effect service on

8

Defendants and file the executed summons. If Plaintiff cannot effect personal service on

9

Defendants within that time, and if it is appropriate, Plaintiff may file a motion for leave to file via

10

substituted service and/or a motion to extend the deadline. If Plaintiff does not do so on or before

11
United States District Court
Northern District of California

3

February 3, 2017, the Court will dismiss the action pursuant to Fed. R. Civ. P. 41(b) without

12

further notice. Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d

13

683, 689 (9th Cir. 2005).
IT IS SO ORDERED.

14
15
16

Dated: January 18, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge

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

1

Plaintiff also argues that Hunstock v. Estate Dev. Corp., 22 Cal. 2d 205 (1943), upon which this
Court partially relied to conclude that neither California law nor the Federal Rule of Civil
Procedure allow for service of a corporation by mail, is no longer good law because
“[a]pproximately 78 years have pas[sed]” since the California Supreme Court issued this opinion.
Mot. 2. While the Court agrees that the Federal Rules of Civil Procedure have undergone several
amendments since 1943, Plaintiff does not provide any authority to support his contention that
Hunstock is no longer good law.
3