IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 30, 2009
RYAN GERIS, PLAINTIFF,
PATRICK BATEMAN, DEFENDANT.
Plaintiff has moved for default judgment. He has not noticed the motion for hearing. Motions for default judgment must be noticed for hearing at the outset, and the motion must be served on defendant at defendant's last known address. Requests for telephonic appearance must be made in advance of any hearing the court confirms, with a showing of good cause for such an appearance to support the court's granting an exception to its standard requirement that an initial appearance be made in person.
There are several defects evident in plaintiff's motion. Plaintiff alleges that defendant is a citizen of Canada and that therefore this court has diversity jurisdiction. However, the complaint also alleges that defendant is a resident of California. Under 28 U.S.C. § 1332(a), an alien admitted to the United States for permanent residence is deemed a citizen of the State in which the alien is domiciled. The complaint, as it now stands, does not sufficiently allege a basis for diversity jurisdiction.
The proof of summons filed by plaintiff also is insufficient to establish proper service in compliance with Federal Rule of Civil Procedure 4. Although plaintiff asserts defendant is a Canadian citizen, there is no proof of service in compliance with the Hague Convention. The proof of service indicates personal service on defendant at an arena, the location of which is unidentified, by a process server from the state of Georgia. There is no indication as to how the process server identified the person served as the defendant.
The affidavit submitted by plaintiff in support of the claimed damages also is insufficient. The medical evidence is not properly authenticated and the letter from the treating physician does not establish that the claimed medical expenses are related to treatment specific to the injuries plaintiff alleges were caused by defendant.
For the foregoing reasons, IT IS HEREBY ORDERED that plaintiff's motion for default judgment is denied without prejudice.
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