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Terrylyn Mccain v. California Highway Patrol

October 28, 2011

TERRYLYN MCCAIN, PLAINTIFF,
v.
CALIFORNIA HIGHWAY PATROL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court is a motion to set aside the Clerk's Certificate of Entry of Default filed by two defaulted defendants, Brent Mangham and Michael Walling (Dkt. No. 58).*fn1 The court heard this matter on its law and motion calendar on October 27, 2011. (Minutes, Oct. 27, 2011, Dkt. No. 69.) Deputy Attorney General William Krabbenhoft appeared on behalf of Mangham and Walling. Plaintiff, who is proceeding without counsel, appeared and represented herself at the hearing. The undersigned has considered the briefs, oral arguments, and appropriate portions of the record in this case and, for the reasons stated below, grants the motion to set aside the default on the grounds that plaintiff did not effectuate proper service of process on Mangham and Walling and, accordingly, the default was entered in error. Consistent with Mangham and Walling's request, Mangham and Walling shall file answers to plaintiff's complaint within 14 days of the date of this order.

I. BACKGROUND

Plaintiff alleges in her verified complaint that on March 14, 2011, at approximately 7:30 p.m., she was driving eastward on "highway 4" in her automobile, a "1994 Jaguar SJX," when she was pulled over by California Highway Patrol ("CHP") Officer Mangham. (See Compl. ¶¶ 7, 16-17, 23, 25-28, 73, Dkt. No. 1.) It appears from plaintiff's allegations that plaintiff refused to provide Officer Mangham with identification, registration, or both and was subsequently arrested, handcuffed, searched by Officer Jane Doe #1, placed in a patrol vehicle, booked into the San Joaquin County Jail, and cited for various traffic violations. (See id. ¶¶ 33-64, 73.) Plaintiff appears to allege that CHP Officer Walling assisted Officer Mangham during the traffic stop and arrest. (See id. ¶¶ 8, 52-53.)

Plaintiff filed her complaint on May 11, 2011, alleging claims against Officers Mangham and Walling in their individual capacities. (Compl. ¶¶ 7-8.) That same day, the Clerk of Court issued a summons as to defendants including Officers Mangham and Walling (Dkt. Nos. 1-2).

On June 3, 2011, plaintiff filed Return of Service forms pertaining to defendants including Officers Mangham and Walling, which were executed under penalty of perjury by plaintiff's process server, Patricia Bonnifield (Dkt. No. 6). Ms. Bonnifield's Return of Service forms declare that she served Officers Mangham and Walling on May 13, 2011; Officers Mangham and Walling contend that the attempted service actually occurred on May 12, 2011. (Compare Return of Service, Dkt. No. 6 at 2-3, with Lawton Decl. ¶¶ 4, 8, Dkt. No. 58, Doc. No. 58-1.)

The Return of Service forms are rather cryptic. The Return of Service Form relating to the purported service of Officer Mangham states, in relevant part:

Other (specify): OFFICER OF THE DAY -- CHP -- NO NAME BADGE WHO SUMMONS WAS LEFT WITH. SHARON CHP office Officer Mangham at 3330 Ad Art Rd. Skton, CA 95215

(Return of Service, Dkt. No. 6 at 2.) The form pertaining to the service of Officer Walling states, in relevant part:

Other (specify): OFFICER OF The day -- CHP -- NO NAME BADGE WHO SUMMONS WAS LEFT WITH. OFFICER Refused To give NAME TOOK THE Summons AND SAID Sharon would BE RIGHT Out SHARON! CHP office Officer Walling Served at 3330 Ad Art Rd.

Sktn, CA 95215 (Return of Service, Dkt. No. 6 at 3.) Neither Return of Service form reflects the particular documents that were purportedly served.

On June 9, 2011, plaintiff requested that default be entered against Officers Mangham and Walling, and the Clerk of Court entered those defendants' default on June 10, 2011 (Dkt. Nos. 12-14).*fn2 At no time did plaintiff file a motion for default judgment as to Officer Mangham or Officer Walling.

On September 16, 2011, Deputy Attorney General William Krabbenhoft appeared on behalf of Officers Mangham and Walling and filed the pending motion to set aside the entry of default on the grounds that Officers Mangham and Walling were not properly served with process (Dkt. No. 58). The motion indicates that Officers Mangham and Walling intend to file an answer to the complaint within ten days after the motion to set aside the default is granted. (Memo. of P. & A. In Supp. ...


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