Kenney v. San Diego, City of et al

Filing 230

ORDER striking proofs of service, ECF Nos. 37-41, 205-227, 42-75, 78, 80, 82 and 84. The Clerks' entries of default are set aside, ECF Nos. 150-163. The Motion to Set Aside Default as to the U.S. Security Associates, Inc. is denied as moot 182 183 . Plaintiff's Ex Parte motion for Clarification 201 is granted in part and denied in part. The Clerk of Court shall mail plaintiff a copy of the Summons issued on the First Amended Complaint. Plaintiff is granted an extension of time of 1 20 days from the date this Order is filed to serve all unserved Defendants named in the First Amended Complaint. No later than 120 days from the date this Order is filed, Plaintiff shall file proof that service of the operative Summons and First Amen ded Complaint was effectuated upon all currently unserved Defendants. If Plaintiff fails to comply with this Order, the Court will dismiss any unserved Defendant(s) without prejudice pursuant to Federal Rule of Civil Procedure 4(m). Signed by Judge William Q. Hayes on 7/2/14. (kas)(copy of summons mailed to plaintiff)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN B. KENNEY,

CASE NO. 13cv248-WQH-JLB

vs.
CITY OF SAN DIEGO, et al.,

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Plaintiff,

ORDER

Defendants.

15 HAYES, Judge:
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“A federal court is without personal jurisdiction over a defendant unless the

17 defendant has been served in accordance with Fed. R. Civ. P. 4.” Benny v. Pipes, 799
18 F.2d 489, 492 (9th Cir. 1986). Rule 4(b) requires that “the clerk must sign, seal, and
19 issue” the summons for service. See Fed. R. Civ. P. 4(b); see also Ayres v. Jacobs &
20 Crumplar, P.A., 99 F.3d 565, 568-69 (3d Cir. 1996) (“The issuance of a summons
21 signed by the Clerk, with the seal of the Court, ... are essential elements of the court’s
22 personal jurisdiction over the defendant....

The parties cannot waive a void

23 summons.”); Bowen v. Post Master Gen., No. 1:14-CV-59-AWI, 2014 WL 1270546,
24 at *5 (E.D. Cal. Mar. 26, 2014) (“The summons served by Plaintiff was not issued by
25 the Court and is neither signed by the Clerk of the Court nor bears the Court’s seal as
26 required under Rule 4. As such, Plaintiff has not substantially complied with Rule 4
27 service requirements.”); McClain v. 1st Sec. Bank of Wash., No. 2:13-CV-2277-RSM,
28 2014 WL 556042, at *1 (W.D. Wash. Feb. 12, 2014) (“To comply with Federal Rule
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13cv248-WQH-JLB

1 of Civil Procedure 4, a plaintiff must serve all defendants with a summons that is both
2 signed by the clerk and bears the Court’s seal.”).
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IT IS HEREBY ORDERED that the summonses attached to the proofs of service

4 filed by Plaintiff at ECF Nos. 37-41 and 205-227 do not bear the signature of the Clerk
5 or the Court’s seal, and accordingly those proofs of service are stricken. The proofs of
6 service filed by Plaintiff at ECF Nos. 42-75, 78, 80, 82 and 84 do not contain a copy of
7 the summonses or any indication that the summonses which were served bore the
8 signature of the Clerk and the Court’s seal, and accordingly those proofs of service are
9 stricken.
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IT IS FURTHER ORDERED that the Clerk’s entries of default based upon the

11 stricken proofs of service are set aside for good cause pursuant to Federal Rule of Civil
12 Procedure 55(c). (ECF Nos. 150-163). The Motion to Set Aside Default as to U.S.
13 Security Associates, Inc. is denied as moot. (ECF Nos. 182, 183).
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IT IS FURTHER ORDERED that Plaintiff’s Ex Parte Motion for Clarification

15 (ECF No. 201) is granted as follows and otherwise denied. The sole operative
16 summons is the Summons issued on the First Amended Complaint (ECF No. 25), which
17 is only operative as to the Defendants specifically named in the Summons issued on the
18 First Amended Complaint, see id. at 3. Although Plaintiff is registered for electronic
19 filing and has electronic access to all filings, the Clerk of the Court shall mail Plaintiff
20 a copy of the Summons issued on the First Amended Complaint. If Plaintiff believes
21 the operative summons contains an error, or requests the issuance of an amended
22 summons, Plaintiff may file a motion to that effect. If Plaintiff wishes to name new
23 defendants who were not specifically named as Defendants in the First Amended
24 Complaint, Plaintiff must file a motion for leave to amend the First Amended
25 Complaint pursuant to Federal Rule of Civil Procedure 15, accompanied by a copy of
26 the proposed amended pleading, which shall be entitled “Second Amended Complaint.”
27 Plaintiff is granted an extension of time of 120 days from the date this Order is filed to
28 serve all unserved Defendants named in the First Amended Complaint. No later than
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13cv248-WQH-JLB

1 120 days from the date this Order is filed, Plaintiff shall file proof that service of the
2 operative Summons and First Amended Complaint was effectuated upon all currently3 unserved Defendants. If Plaintiff fails to comply with this Order, the Court will dismiss
4 any unserved Defendant(s) without prejudice pursuant to Federal Rule of Civil
5 Procedure 4(m).
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DATED: July 2, 2014
WILLIAM Q. HAYES
United States District Judge

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13cv248-WQH-JLB