Lewis v. Extradition Transport of America

Filing 13

ORDER denying 12 Motion for Default Judgment. Signed by Jeremiah C. Lynch on 10/24/2013. Mailed to Lewis. (TAG, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

CV 13-00138-M-DWM-JCL

STANFORD ALLEN LEWIS, JR,
Plaintiff,

vs.

ORDER

EXTRADITION TRANSPORT OF
AMERICA,

OCT 2 ~ ~Of3
Defendant.

Clerk, u.s. DistriC1 COl,,!

District Of Morn,,' .i

Missoula

Pending before the Court is Plaintiff Stanford Lewis's Motion for Default
Judgment. (Doc. 12). In an Order dated August 14,2013 (Doc. 8), the Court
concluded that Defendant Extradition Transport of America must make an
appearance on Lewis's claims and directed the Clerk of Court to send Defendant a
Request for Waiver of Service of Summons. Although Defendant did not respond
to the request for waiver, the failure to respond to a request for a waiver is not a
basis for default judgment. Defendant has not waived service of summons and
therefore has not been served with process. Absent service, the Court has no
jurisdiction over a defendant. Action Embroidery Corp. v. Atlantic Embroidery,

Inc., 368 F.3d 1174, 1177 (9th Cir. 2004). The Motion for Default Judgment will

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be denied. 1
Given the failure to respond to the request for waiver of service, the Court
will direct the United States Marshals Service to serve Defendant.
Based upon the foregoing, the Court issues the following:
ORDER
1. Plaintiff's Motion for Default Judgment (Doc. 12) is denied.
2. The Clerk of Court shall issue a summons to Defendant Extradition
Transport of America.
3. The Clerk of Court shall provide the following documents to the United
States Marshals Service:

*

the Summons;

*

a copy of the Complaint (Doc. 2);

*

the Order of August 14,2013 (Doc. 8);

*

this Order; and

*

a prepared USM-285 form.

4. The United States Marshals Service or its designated agent shall
personally serve Defendant Extradition Transport of America with the documents

lSince the denial of entry of default judgment is not dispositive in this action,
the Court shall proceed by order.

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provided by the Clerk of Court to: Extradition Transport of America, L.L.C., 1450
University Avenue, Riverside, CA 92507; telephone number 951-682-7760.
Service by certified mail is not sufficient. Service shall be made within ninety
(90) days of the date ofthis Order. If service is not made within that time, the
Marshals Service may request an extension of time to serve by filing an affidavit
with the Court explaining the circumstances. If service is not possible, the
Marshals Service shall file an affidavit with the Court explaining the
circumstances. In either case, the Marshals Service shall serve a copy of any
affidavit or request on Plaintiff Stanford Lewis, Missoula County Detention
Facility, 2340 Mullan Road, Missoula, MT 59808.
5. At all times during the pendency of this action, Lewis SHALL
IMMEDIATELY ADVISE the Court and opposing counsel of any change of
address and its effective date. Failure to file a NOTICE OF CHANGE OF
ADDRESS may result in the dismissal of the action for failure to prosecute
pursuant to Fed.R.Civ.P. 41(b).
DATED this

M

day of Octob

J r miah C. Lynch
ited States Magistrate Judge

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