The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
On January 5, 2007, Plaintiff filed the present interpleader action in order to obtain judicial determination on the entitlement to retirement benefits payable to its deceased former employee, Juan Magallon. Both Raquel S. Magallon and Ana C. Gomez claim to have been married to Mr. Magallon and have both claimed entitlement to said benefits following his death. Plaintiff accordingly filed this action to resolve their competing claims.
The docket for this action reflects, at Docket Nos. 5 and 6, that both Raquel S. Magallon and Ana C. Gomez signed Waivers of Service after the lawsuit was filed representing that they would file either an answer or a motion under Federal Rule of Civil Procedure 12(b)(6) not later than 60 days after January 29, 2007. Although the Waiver provides an admonition that judgment may be rendered against them in the absence of such a filing, neither Magallon or Gomez have filed an answer of Rule 12(b)(6) motion. While an attorney purporting to represent Ana C. Gomez participated in the filing of a Joint Status Report filed on September 10, 2007 (Docket No. 8), no formal appearance has ever been made on Ms. Gomez' behalf. No appearance of any kind has been entered with respect to Raquel S. Magallon, although the Joint Status Report does mention contact she made with one of the parties. Moreover, the proof of service for the Joint Status Report reflects that a copy was sent to her at an address in San Fernando, California.
In the meantime, Plaintiff successfully moved for discharge from this action after representing that it would apportion the retirement benefits as directed by the Court. Plaintiff was dismissed by Memorandum and Order dated July 2, 2008, leaving it to the Court to adjudicate the competing interests of Defendant to the Herman Miller retirement benefits.
A bench trial is presently set in this matter on November 12, 2009 to make that determination. After reviewing the file, however, it appears that neither Defendant is properly before the Court and as a consequence neither has received notice of the trial date. The November 12, 2009 trial date is accordingly vacated.
Not later than twenty (20) days following the date of this Order, Defendants Raquel S. Magallon and Ana C. Gomez are directed to file an answer to this interpleader proceeding. If no answer is filed during that prescribed period of time, the Court issues an Order to Show Cause as to why this matter should not be dismissed against either or both of the Defendants. A hearing on the Order to Show Cause, if necessary, is set for September 10, 2009 at 2:00 p.m.
The Clerk of Court is hereby directed to serve a copy of this Order on Ana C. Gomez through the attorney who participated in the preparation of the Joint Status Report on her behalf, Merlyn Hernandez. In addition, the Clerk shall serve Raquel S. Magallon at the following address: 1057 N. Huntington St., San Fernando, CA 91340.
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