Burnett v. Dugan et al

Filing 43

Amended ORDER Denying 41 Motion for Default Judgment. Signed by Judge M. James Lorenz on 7/29/2009. (All non-registered users served via U.S. Mail Service).(mjj) (jrl).

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ESTER BURNETT, v. DR. DUGAN, et al., Defendants. _________________________________ Plaintiff, ) ) ) ) ) ) ) ) ) Civil No.08CV1324-L(PCL) AMENDED ORDER DENYING MOTION FOR DEFAULT JUDGMENT [doc. #41]

Plaintiff Ester Burnett, appearing pro se, moves for default judgment against defendants Dugan and Hawthorne contending that default has been entered against them. (Motion at 2.)1 Plaintiff is incorrect. Default has not been entered against these defendants. Neither defendant Dugan nor Kinji Hawthorne has been served2 with the first amended complaint. Defendants Nasaria Barreras, Dev Khatri, M. Fraze and Victor Almager timely filed a motion to dismiss the first amended complaint [doc. #34]

Plaintiff's motion does not contain page numbers. The Court refers to the page number provided by the e-filing system.
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The "Service of Process by the U.S. Marshal" form was returned unexecuted as to Kinji Hawthorne, see docket no. 15, and Dr. Dugan, see docket no. 16. Because Dr. Dugan and Kanji Hawthorne have not been served, default cannot be entered against them.
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Based on the foregoing, plaintiff's motion for default judgment against defendants Dugan and Kinji Hawthorne is without a legal or factual basis. Accordingly, plaintiff's motion for default judgment is DENIED. IT IS SO ORDERED. DATED: July 29, 2009 M. James Lorenz United States District Court Judge COPY TO: HON. PETER C. LEWIS UNITED STATES MAGISTRATE JUDGE ALL PARTIES/COUNSEL

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