Pathak v. Exotic Meat Market, Inc.

Filing 18

ORDER. IT IS HEREBY ORDERED that 13 Motion for Entry of Clerks Default is DENIED without prejudice. Proof of service due by 6/27/2016. IT IS FURTHER ORDERED that 15 Objections are overruled. Signed by Judge Jennifer A. Dorsey on 6/6/16. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Anshu Pathak,

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2:16-cv-00368-JAD-VCF

Plaintiff
Order

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v.

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Exotic Meat Market, Inc.,

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Defendant

[ECF Nos. 13, 15]

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Anshu Pathak sues Exotic Meat Market, Inc. for fraud. “Defendant Sunil Bhasin, as

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individual, aka president of expired and/or dissolved domestic Corporation[] known as Exotic Meat

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Market, Inc.,” responded on behalf of Exotic with a motion to dismiss or transfer venue to the

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Central District of California.1 Because corporations like Exotic may appear in federal court only

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through a licensed attorney, I denied the motion without prejudice and ordered Exotic to retain an

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attorney to appear on its behalf. I cautioned Exotic that if it failed “to timely file a response to the

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complaint through proper counsel, the court will grant plaintiff’s pending motion for entry of default

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[ECF No. 13] without further notice.”2

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Exotic did not retain an attorney, and Bhasin objects to my order. He claims that he has

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standing to file papers in this case because he is an unnamed doe defendant and thus a party to this

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case, and he insists that Exotic has not been properly served with process.3 Although I disregard

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Exotic’s objections because Bhasin cannot raise them on Exotic’s behalf, on further review of

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Pathak’s proof, it appears that the summons that was served on Bhasin as Exotic’s resident agent was

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improperly altered and is thus ineffective. I deny Pathak’s motion for default and give Pathak until

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June 27, 2016, to properly serve an unaltered, properly issued summons on Exotic in compliance

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with the law.

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ECF Nos. 5, 6.

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ECF No. 14.

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ECF No. 15.

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Discussion

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Rule 55(a) of the Federal Rules of Civil Procedure states, “When a party against whom a

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judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is

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shown by affidavit or otherwise, the clerk must enter the party’s default.”

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As his proof of service, Pathak offers a summons that the process server swears was

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personally served on Sunil Bhasin, the resident agent of Exotic, a Nevada corporation.4 But, upon

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inspection, it appears that this summons was altered. There was only one summons issued by the

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Clerk of Court in this case,5 and that summons was issued to defendant Exotic Meat Market, Inc.

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But the summons that was ultimately served on Bhasin has Exotic crossed out as the defendant, and

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someone instead handwrote in, “Anil Joshi, officer at Exotic Meat Market Inc.”6

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ECF No. 8 at 2.

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See ECF No. 2.

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ECF No. 8 at 1.

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The proof of service states that the summons served was for “Anil Joshi, Officer of Exotic Meat

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Market (Doe5).” Curiously, the complaint alleges that “Mr. Anil K. Joshi does not exist.”7

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A summons is a legal document issued by the Clerk of Court. It cannot be altered except by

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the Clerk of Court. And Rule 4 of the Federal Rules of Civil Procedure clearly explains that a

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summons “must” “be directed to the defendant,” not to a non party, particularly one that the

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complaint alleges “does not exist.”8 Because proper legal service consists of the summons issued by

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the court and a copy of the complaint—and it appears from the documents submitted by Pathak that

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the summons was improperly altered before it was served, I cannot conclude that Exotic received

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legal service of process. For this reason, I deny Pathak’s motion for the Clerk’s entry of default

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against Exotic.

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Rule 4(m) states, “If a defendant is not served within 90 days after the complaint is filed, the

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court—on motion or on its own after notice to the plaintiff—must dismiss the action without

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prejudice against that defendant or order that service be made within a specified time.”9 Pathak has

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until June 27, 2016, to effectuate proper and complete service of the original UNALTERED

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summons and complaint on Exotic Meat Market, Inc., in the manner required by law. If Pathak no

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longer has the unaltered summons, he must submit a new one to the Clerk of Court for issuance.

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Pathak is cautioned that the summons must be issued in the name of the defendant, and the only

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named defendant in this case is Exotic Meat Market, Inc.

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Nothing in this order should be construed to condone Bhasin’s appearance, or attempt to

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appear, on behalf of Exotic. Corporations like Exotic may appear in federal court only through a

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licensed attorney.10 Bhasin has been repeatedly warned that he lacks the power and ability to

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ECF No. 1 at ¶ 22.

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Fed. R. Civ. P. 4(a)(1)(B).

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Fed. R. Civ. P. 4(m).

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See 28 U.S.C. § 1654; Rowland v. California Men’s Colony, 506 U.S. 194, 202 (1993); Licht v.
Am. W. Airlines (In re Am. W. Airlines), 40 F.3d 1058, 1059 (9th Cir. 1994) (“Corporations and other
unincorporated associations must appear in court through an attorney.”).
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represent Exotic, and he has not been named as a defendant in this case so he has no right to file

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documents in any capacity in this case. This court will disregard all future filings by Bhasin in this

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case on behalf of Exotic or in any other capacity unless Pathak formally names Bhasin as a party in

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this case (and as of now, he has not).

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Conclusion

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Accordingly, IT IS HEREBY ORDERED that Pathak’s Motion for Entry of Clerk’s Default

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[ECF No. 13] is DENIED without prejudice. Pathak has until June 27, 2016, to properly serve and

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file proof of legal service on Exotic, or this case will be dismissed under FRCP 4(m) without

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prejudice and without further notice;

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IT IS FURTHER ORDERED that Bhasin’s objections on behalf of Exotic [ECF 15] are
overruled because Bhasin, a non-attorney, lacks the ability to file documents in this case.
Dated this 6th day of June, 2016

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_____________________
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Jennifer A. Dorsey
Dorsey
rse
United States District Judge

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