Davis v. State of California et al

Filing 24

MEMORANDUM AND ORDER finding as moot 14 Motion for Leave of Court to Correct; denying 17 Motion for Reconsideration ; denying 18 Motion for Reconsideration. Signed by Chief District Judge Julie A Robinson on 5/15/17. Mailed to pro se party Ronald E. Davis by regular mail. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RONALD E. DAVIS,
Plaintiff,
v.

Case No. 17-2125-JAR-JPO

STATE OF CALIFORNIA, et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff Ronald E. Davis, proceeding pro se, brings this action against Defendants the
State of California, California Franchise Tax Board, and California State Agency Insurer,
seeking to recover for alleged violations of his privacy and constitutional rights, as well as
negligence. This matter comes before the Court on Plaintiff’s Motions to Reconsider (Docs. 17,
18) this Court’s orders denying his application for entry of default and default judgment under
Fed. R. Civ. P. 55,1 and Motion for Leave of Court to Correct (Doc. 14). As described more
fully below, Plaintiff’s motions to reconsider are denied. Plaintiff’s motion for leave to correct
proof of service is moot.
I.

Motions to Reconsider
The Court denied Plaintiff’s motion for entry of default against Defendants under Fed. R.

Civ. P. 55(a), which provides that “[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default.” The Court determined that Plaintiff had

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Docs. 12, 13.

failed to submit sufficient proof of service and therefore denied his motion.2 Plaintiff asks this
Court to reconsider its denial of his motion for default, arguing that he complied with California
law in serving process in this case, and that the State in fact received process as evidenced by a
letter he received from its counsel advising him that it was not properly served under the Federal
Rules.
A party may seek reconsideration of a non-dispositive order on the following grounds:
(1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need
to correct clear error or prevent manifest injustice.3 Plaintiff has failed to establish any of these
grounds in his motion for reconsideration. As the Court explained in its order denying default,
Plaintiff failed to provide sufficient proof that Defendant had been properly served. He
submitted neither (1) the affidavit of proof of service contained in the summons this Court
issues; nor (2) an acknowledgement of receipt of summons that complies with California law for
service of process.
Plaintiff urges that he complied with a California statute in serving process on
Defendants, citing Cal. Civ. Proc. Code § 416.50. That provision applies to public entities and
states: “(a) A summons may be served on a public entity by delivering a copy of the summons
and of the complaint to the clerk, secretary, president, presiding officer, or other head of its
governing body.” The problem with Plaintiff’s proof of service however, was not whether or not
he complied with this California provision. As the Court explained in its order, he failed to
submit an affidavit of service. Instead, Plaintiff submitted three separate documents, which each
appear to be United States Postal Service certified mail receipts indicating that Plaintiff mailed

2

A party has no duty to plead until properly served, therefore sufficient service of process is a prerequisite
to entry of default. Fisher v. Lynch, 531 F. Supp. 2d 1253, 1269 n.12 (D. Kan. 2008).
3

D. Kan. R. 7.3(b).

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items to three different California addresses, and that recipients at each address signed for the
items.4 These documents, however, are not affidavits of proof of service, are not affirmed under
penalty of perjury, do not mention a summons or Plaintiff’s Complaint being sent,5 and do not
name the individuals or the titles of the individuals who received service. As the Court
explained, this was insufficient. Plaintiff has not submitted documentation with his motions to
reconsider that would cure this deficiency.
Plaintiff suggests that a letter he received from Defendants’ counsel acknowledging
receipt of the Complaint and summons is sufficient proof of service. But actual notice is
insufficient, standing alone, as a substitute for proper service, particularly where a plaintiff seeks
default judgment.6 The Court declines to find sufficient process based on the April 7 letter from
Defendants’ counsel attached to Plaintiffs’ motions. Plaintiff’s motions to reconsider are thus
denied.
B.

Motions for Leave to Correct

After this Court’s orders denying default, and before he sought reconsideration, Plaintiff
filed his motion for leave to correct his proof of service in accordance with this Court’s guidance
in its order denying entry of default. The Court finds this request moot because in its order
denying entry of default, the Court already granted Plaintiff leave to amend his proof of service
to comply with Fed. R. Civ. P. 4.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motions to
Reconsider (Docs. 17, 18) are denied.

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Docs. 3, 4, & 5.

5

Judd v. F.C.C., 276 F.R.D. 1, 6–7 (D.D.C. 2011) (affidavit of service that made no mention of summons
or complaint were not proper proof of service).
6

Am. Exp. Centurion Bank v. Zara, 199 Cal. App. 4th 383, 390–91 (Cal. Ct. App. 2011).

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave of Court to Correct
(Doc. 14) is moot.
IT IS SO ORDERED.
Dated: May 15, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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