UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 16, 2010
HERMAN MILLER INC. RETIREMENT INCOME PLAN, PLAINTIFF,
RAQUEL S. MAGALLON, ALSO KNOWN AS RAQUEL S. MORA, A INDIVIDUAL AND ANA C. GOMEZ, ALSO KNOWN AS ANA MAGALLON, AN INDIVIDUAL, DEFENDANTS.
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 either an answer other responsive pleading to this lawsuit. 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.
By Order filed July 27, 2009, this Court vacated the then-pending November 12, 2009 on grounds that neither Defendant was properly before the Court.
It ordered both Raquel S. Magallon and Ana C. Gomez*fn1 to respond to this interpleader proceeding within twenty (20) days after July 27, 2009, and indicated that an Order to Show Cause as to why the matter should not be dismissed would be scheduled if no appearance had been made within that period.*fn2
To date, no appearance has been made by either Defendant in the more than seven months that has transpired since July 27, 2009. An Order to Show Cause as to why this matter should not be dismissed is accordingly set for April 8, 2010 at 2:00 p.m. in Courtroom No. 7. Failure to appear at this hearing will be deemed good cause for the Court to dismiss this action in its entirety without any further notice and/or hearing(s).
The Clerk of Court is hereby directed to serve a copy of this Order on Ana C. Gomez, again through the attorney who participated in the preparation of the Joint Status Report on her behalf, Merlyn Hernandez. In addition, the Clerk shall also serve Raquel S. Magallon at 1057 N. Huntington St., San Fernando, CA 91340.
IT IS SO ORDERED.