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Ogundimo v. Steadfast Property & Development

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 10, 2009

CARLOTTA OGUNDIMO, ET AL., PLAINTIFFS,
v.
STEADFAST PROPERTY & DEVELOPMENT, INC., ET AL., DEFENDANTS.

ORDER DENYING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (DOC. 17) ORDER STRIKING PLAINTIFF'S PURPORTED AMENDED COMPLAINT (DOC. 19) ORDER DENYING PLAINTIFF'S MOTION TO CONTINUE SCHEDULING CONFERENCE (DOC. 18) ORDER VACATING SCHEDULING CONFERENCE OF JULY 8, 2009 ORDER RESETTING SCHEDULING CONFERENCE

Date: September 15, 2009

Courtroom: No. 3 (7 th Floor)

Judge Oliver W. Wanger

Plaintiff Carlotta Ogundimo and her minor children are proceeding pro se with an action for damages and other relief concerning alleged civil rights violations. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-304.

I. Background

On March 12, 2009, the Court directed Plaintiff to complete and return service documents according to the directions found on USM civil instructions, which were sent by the Clerk to Plaintiff with summons forms and the complaint on the same date. Plaintiff was instructed to complete the service documents and return them as instructed to the Court so that the Clerk could forward them to the Marshal, who in turn would serve the complaint and related documents on Defendants for Plaintiff.

Plaintiff sent the Court what appeared to be a proof of service, an indication that Plaintiff herself attempted to undertake service by mail of the documents on the Defendants by herself. A delay in the service process ensued. The Court issued an additional order of directions to Plaintiff concerning service documents that was subject to a delay in processing; by the time the order was filed and served on Plaintiff, Plaintiff had submitted what the Court now understands to have been adequate service documents.*fn1 Document 11, a filed notice of submission, appears to reflect receipt of the required service documents.

In a handwritten letter to the Court from Plaintiff that was filed in the docket on April 9, 2009, Plaintiff stated that she sent proof of service before she received the service package, and then she later completed the mail package and submitted the documents. (Doc. 14.)

The documents docketed as proofs or certificates of service filed by Plaintiff reflect service by mailing on February 5, 2009, of the complaint on Defendant Steadfast Properties and Development, Inc., (Doc. 10); proof of service by mailing on April 8, 2009, of a scheduling conference order and a standing order, with return receipt dated April 8, 2009 (Doc. 15); and a form for service that is not completed (Doc. 16).

II. Motion for Default Judgment

On April 9, 2009, Plaintiff filed a motion for default judgment that was not scheduled for a hearing.

The clerk shall enter a party's default when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by the pertinent Federal Rules of Civil Procedure. Fed. R. Civ. P. 55(a). Unless a different time is prescribed by statute of the United States, a defendant shall serve an answer within twenty days after being served with the summons and complaint. Fed. R. Civ. P. 12(a). Before a default will be entered, the clerk must be satisfied from the request and accompanying documentation that 1) the defendant has been served with the summons or has agreed to waive service, 2) the time allowed by law for responding has expired, and 3) the defendant has failed to file a pleading or motion permitted by law. Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d 508, 512 (9 th Cir. 1986).

Here, Plaintiff's proofs of service by mail upon the private party defendant do not demonstrate service of process pursuant to Fed. R. Civ. P. 4. No default of any defendant has been entered or could be entered because it has not been demonstrated that legally sufficient service has been effected on any defendant.

Accordingly, Plaintiff's motion for default judgment IS DENIED as premature.

Further, Plaintiff IS REMINDED that because Plaintiff is proceeding in forma pauperis, service of the action will be effected by the Marshal, not by Plaintiff.

III. Purported Amended Complaint

On April 9, 2009, Plaintiff filed a document headed as "Amended & Corrected Copy," and docketed as "NOTICE Amended and Corrected Copy by Carlotta Ogundimo," which was a copy of an earlier order of the Court with the names of additional Defendants (i.e., names of parties not contained in the original complaint filed on February 5, 2009) added to the caption portion of the order. The Court construes this filing as a purported amended complaint.

Although Plaintiff may file one amended complaint as a matter of right before being served with responsive pleading, Plaintiff's purported amendment fails to comply with local rule 15-220, which requires that an amendment to a complaint must be accomplished by filing an entirely new complaint that is complete in itself. Local Rule 15-220.

A court may strike a document that does not conform to the formal requirements of the pertinent rules of court. Fed. R. Civ. P. 12(f); Transamerican Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 143 F.R.D. 189, 191 (N.D. Ill. 1992).

Accordingly, Plaintiff's purported amendment of the complaint IS ORDERED STRICKEN.

IV. Motion to Continue the Scheduling Conference

On April 9, 2009, Plaintiff filed a pleading docketed as a motion "to Court to up the date set for mandatory scheduling conference" (Doc. 18), which the Court deems to be a motion to vacate the previously set scheduling conference and to continue the scheduling conference to a later date based on Plaintiff's physical condition.

Plaintiff's motion IS DENIED AS MOOT.

In view of the delay in service and apparent intention of Plaintiff to attempt to add new parties to the action, the Court on its own motion VACATES the presently set scheduling conference on July 8, 2009, and RESETS the mandatory scheduling conference for September 15, 2009, at 9:15 a.m., in Courtroom 3, before Judge Oliver W. Wanger.

IT IS SO ORDERED.

Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE


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