UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
July 1, 2011
STEVEN M. GOLDSTEIN,
THE SOCIAL SECURITY AND TOLERANCE ADMINISTRATION; THE SOCIAL SECURITY ADMINISTRATION,
The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER DENYING PLAINTIFF'S MICHAEL J. ASTRUE, COMMISSIONER OF MOTIONS FOR RECONSIDERATION
benefits. Plaintiff previously attempted to personally serve the Commissioner of the Social Security Administration with his complaint, and, when the Commissioner did not appear or 21 respond to the complaint, Plaintiff moved for default judgment. Because Plaintiff had not properly 22 served the Defendant, however, the Court denied Plaintiff's motion. See June 6, 2011 Order.
On 23 June 10, 2011, Plaintiff filed a motion for reconsideration of the Court's denial of his motion for 24 entry of default judgment. See Dkt. No. 13. Meanwhile, Plaintiff successfully served his 25 complaint on the Defendant. See Dkt. Nos. 15, 16 and 17. The Defendant has now appeared. See 26 Dkt. No. 19. On June 17, 2011, Plaintiff filed a motion titled "Motion for Tolerance." In this 27 motion, Plaintiff states that he believes he should have retained the embossed copy of the summons 28 and returned it to the Clerk's office rather than serving it on the Social Security Administration.
Plaintiff has filed a complaint seeking review of a decision denying him Social Security Plaintiff asks the Court to either order the Clerk's office to produce another embossed copy of the 2 summons, or else "accept the copy of a summons properly filled out regarding service that is 3 already in the files of this case."
judgment. As the Court noted in its order denying default judgment, Plaintiff had not properly 15 served the Defendant when he moved for default. A party cannot default if it has no notice of a 16 case. Entering default in this situation would have been error. While the Court understands Plaintiff has now successfully served the Defendant. The case may now proceed to a determination 19 on the merits. Therefore, Plaintiff's request for reconsideration is DENIED.
Civil Local Rule 7-9(b) provides that on a motion for leave to file a motion for
The moving party must specifically show:
(1) That at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought. The party also must show that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or
(2) The emergence of new material facts or a change of law occurring after the time of such order; or
(3) A manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order.
Plaintiff has provided no basis for the Court to reconsider its Order denying Plaintiff default Plaintiff's frustration with attempting to comply with the rules of service, the record shows that Plaintiff's concern about the embossed copy of the summons appears to be a non-issue.
The docket shows that the Clerk entered a copy of the summons. Dkt. No. 14. This is all that is 22 required. Based on the proofs of service that Plaintiff filed and the fact that the Defendant has 23 appeared, there is no need for the Clerk's office to issue another embossed summons.
Finally, the Court notes that Defendant has filed its consent to proceed before the United States Magistrate Judge for all purposes in this matter. Within seven days of the date of this Order, Plaintiff shall file a statement indicating whether he consents or declines to proceed before a United States Magistrate Judge for all purposes.*fn1
If Plaintiff consents, the Court will reassign this case to a United States Magistrate Judge.
IT IS SO ORDERED.