Banks v. ACS Education et al

Filing 100

ORDER Re Motions to Set Aside Entry of Default and Motion for Default Judgment. Defendants JPMorgan's and Kathleen Barnhill's motions to set aside default [docks. # 44, 50] are granted. Plaintiff's 55 Motion for Default Judgment ag ainst Defendants is denied. Plaintiff shall effect proper service on Defendants JPMorgan, Kathleen Barnhill, "Charlette", State Student Aid Commission, and any other Defendant within sixty days of the filing of this order or his case against any Defendant not properly served shall be dismissed without prejudice. Signed by Judge Barry Ted Moskowitz on 3/2/11. (All non-registered users served via U.S. Mail Service)(jer)

-CAB Banks v. ACS Education et al

Doc. 100

1 2 3 4 5 6 7 8 9 10 11 12 v. 13 14 15 16 to set aside default [docks. # 44, 50] and Plaintiff's motion for default judgment against 17 Defendants JPMorgan, Kathleen Barnhill, "Charlette," and State Student Aid Commission 18 [dock. #55]. 19 I. MOTIONS TO SET ASIDE DEFAULT 20 Fed. R. Civ. P. 55(c) provides that a court may set aside the entry of default "for good 21 cause shown." Factors to be considered when deciding whether to set aside an entry of 22 default judgment include: (1) whether the defendant's "culpable conduct" led to the default; 23 (2) whether the plaintiff would be prejudiced by a set-aside; and (3) whether the defendant 24 can present a meritorious defense to the claim. Falk v. Allen, 739 F.2d 46, 463 (9th Cir. 25 1984); American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108 (9th 26 Cir. 2000). 27 Here, both JPMorgan and Ms. Barnhill were improperly served. According to an 28 executed summons filed on December 28, 2010, a process server served a summons on 1
10c1886-BTM (CAB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ALFRED BANKS, Plaintiff, ACS EDUCATION, et al., Defendants.

Case No. 10cv1886-BTM (CAB) ORDER RE MOTIONS TO SET ASIDE ENTRY OF DEFAULT AND MOTION FOR DEFAULT JUDGMENT

Pending before the Court are Defendants JPMorgan's and Kathleen Barnhill's motions

Dockets.Justia.com

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JPMorgan at 10834 International Drive, Suite 100, Rancho Cordova, California 95670 ("International Drive"), delivering a copy of the summons to Janet McDuffie. Internet searches show that this is the address of California Student Aid Commission, the employer of Ms. McDuffie. JPMorgan does not maintain a place of business on International Drive and Ms. McDuffie is not an employee of JPMorgan. (Brinker Decl. ¶¶ 3, 4) With respect to Ms. Barnhill, according to an executed summons filed on January 3, 2011, service of a summons was made to Richard E. Carter, her alleged agent for service of process. However, Ms. Barnhill has not appointed Mr. Carter, nor any other individual as a designated agent for service of process. (Barnhill Decl. ¶ 43) Improper service of the complaint presents good cause to set aside entries of default. See Mason v. Genisco Technology Corp., 960 F.2d 849, 851 (9th Cir. 1992). JPMorgan's and Ms. Barnhill's motions to set aside default are GRANTED and Plaintiff's motion for default judgment as to these defendants is DENIED as moot. II. MOTION FOR DEFAULT JUDGMENT Similarly, Plaintiff has not provided sufficient evidence that Defendants "Charlette" and State Student Aid Commission were properly served. As proof of service, Plaintiff provides affidavits by a process server stating the summons was served on Dona Niemeyer on behalf of "Charlette" and Janet McDuffie on behalf of State Student Aid Commission. [Dock. # 35, 36] However, Plaintiff does not provide evidence that either Ms. Niemeyer or Ms. McDuffie is authorized to accept process on behalf of "Charlette" or State Student Aid Commission. See Fed. R. Civ. P. 4(e)(2); Fed. R. Civ. P. 4(h)(1)(B); Cal Code Civ Proc § 416.10(a). Alternatively, with respect to State Student Aid Commission, Plaintiff has not shown that Ms. McDuffie is "apparently in charge of the office" where summons was served or that the additional requirements of Cal Code Civ Proc § 415.95 were met. Therefore, Plaintiff's motion for default judgment is DENIED without prejudice. Plaintiff may refile his motion for default judgment to cure these deficiencies within twenty days of entry of this order or the defaults will be vacated.

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10c1886-BTM (CAB)

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III. ADDITIONAL REQUESTS FOR ENTRY OF DEFAULT Finally, after Plaintiff filed his amended complaint, he requested entry of default against three additional Defendants for purported failure to respond to the original complaint. [Docks. # 93-95.] Because "[t]he amended complaint supersedes the original, the latter being treated thereafter as non-existent," Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967), the Clerk was instructed to deny these requests and not enter default. Going forward, if Plaintiff seeks to enter default against any Defendant for failure to respond to the First Amended Complaint, the Clerk shall forward the request to the Court for determination of whether proper service was made. IV. CONCLUSION Defendants JPMorgan's and Kathleen Barnhill's motions to set aside default are GRANTED. Plaintiff's motion for default judgment against Defendants is DENIED. Plaintiff shall effect proper service on Defendants JPMorgan, Kathleen Barnhill, "Charlette," State Student Aid Commission, and any other Defendant within sixty days of the filing of this order or his case against any Defendant not properly served shall be dismissed without prejudice.

IT IS SO ORDERED.

DATED: March 2, 2011

Honorable Barry Ted Moskowitz United States District Judge

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10c1886-BTM (CAB)