Vahidallah v. Chase Bank et al

Filing 6

ORDER Instructing Clerk of Court Not to Enter Default re: 4 Request for Entry of Clerk Default. Only proper service of the summons and complaint triggers a Defendant's obligation under the Federal Rules to serve and file a responsive plead ing within the specified time period. There is no evidence in the record to demonstrate that Plaintiff has served Chase Bank with the summons and complaint in a legally effective manner, as required by Federal Rule of Civil Procedure 4(c). Accordingly, the Court instructs the Clerk of Court not to enter default against Defendant Chase Bank. Signed by Judge Michael M. Anello on 4/24/2013.(All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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HUSSAIN D. VAHIDALLAH,

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vs.

Plaintiff,

CASE NO. 13cv590-MMA (BLM)
ORDER INSTRUCTING CLERK
OF COURT NOT TO ENTER
DEFAULT

CHASE BANK, et al.,

[Doc. No. 4]
Defendant.
Plaintiff Hussain D. Vahidallah, proceeding pro se, has filed a complaint

16 against Defendants Chase Bank, et al., alleging various causes of action related to a
17 mortgage loan modification. Plaintiff paid the $350 filing fee required to institute
18 this action, and a summons was issued. Plaintiff now requests the Clerk of Court
19 enter default based on Chase Bank’s failure to answer or otherwise respond to the
20 complaint in a timely manner.
Pursuant to Federal Rule of Civil Procedure 55(a), “[w]hen a party . . . has
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22 failed to plead or otherwise defend, and that failure is shown by affidavit or
23 otherwise, the clerk must enter the party’s default.” Rule 12 of the Federal Rules of
24 Civil Procedure provides, “a defendant must serve an answer within 21 days after
25 being served with the summons and complaint; or if it has timely waived service
26 under Rule 4(d), within 60 days after the request for a waiver was sent.” FED. R.
27 CIV. P. 12(a)(1)(A). Because Plaintiff has paid the filing fee and is not proceeding
28 in forma pauperis, it is his responsibility to effect service of the summons and
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13cv590

1 complaint on Chase Bank. FED. R. CIV. P. 4; 28 U.S.C. § 1915(d).
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Here, Plaintiff states under penalty of perjury that he filed the case on March

3 13, 2013, and as of April 22, 2013, 41 days later, Chase Bank has not answered the
4 complaint. See Doc. Nos. 4, 5. Plaintiff also includes a receipt, showing that on
5 March 14, 2013, he paid the United States Postal Service $2.72 to send a “First6 Class Large Env” to Denver, Colorado, 80246. See Doc. No. 5. On this basis alone,
7 Plaintiff requests that the Clerk enter default against Chase Bank. However, this is
8 insufficient to warrant entry of default against Chase Bank. Federal Rule of Civil
9 Procedure 4 allows service of process on a corporation by several specific methods
10 as well as by “following state law for serving a summons.” See Fed. R. Civ. P.
11 4(e)(1),(h). Plaintiff’s receipt from the post office does not constitute proof of
12 legally effective service of process. The receipt merely demonstrates that Plaintiff
13 paid to mail something in a large envelope via first class mail. Even if the Court
14 were to assume that the envelope contained a copy of the summons and complaint,
15 simply mailing the summons and complaint does not accomplish service on a
16 corporation under Rule 4 or California state law. See Cal. Civ. Proc. Code §§
17 416.10 et seq.
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In sum, only proper service of the summons and complaint triggers a

19 defendant’s obligation under the Federal Rules to serve and file a responsive
20 pleading within the specified time period. There is no evidence in the record to
21 demonstrate that Plaintiff has served Chase Bank with the summons and complaint
22 in a legally effective manner, as required by Federal Rule of Civil Procedure 4(c).
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Accordingly, the Court instructs the Clerk of Court not to enter default against

24 Defendant Chase Bank.
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IT IS SO ORDERED.

26 DATED: April 24, 2013
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Hon. Michael M. Anello
United States District Judge
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13cv590