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Scott Johnson v. S & K Partnership

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 7, 2011

SCOTT JOHNSON, PLAINTIFF,
v.
S & K PARTNERSHIP, DEFENDANTS.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

This action was referred to the undersigned pursuant to Local Rule 302(c)(21). Dkt. no. 8. On September 21, 2011, the answer of defendant was stricken because a partnership may not proceed in propria persona. Plaintiff now moves for default judgment. However, it appears that service of summons was not properly effected. The proof of service indicates a person other than the authorized agent for service of process was served with the summons. See dkt. no. 6 (executed summons); dkt no. 7 (letter from general partner of defendant partnership). Because service of summons does not comply with Federal Rule of Civil Procedure 4(h), the court will vacate the entry of default inasmuch as service of summons has not yet been properly effected.

Accordingly, IT IS HEREBY ORDERED that:

1. The entry of default (dkt. no. 13) is vacated.

2. The motion for default judgment (dkt. no. 14) is denied without prejudice.

3. Within thirty days, plaintiff shall file proof of service of summons demonstrating compliance with Federal Rule of Civil Procedure (h) or a voluntary dismissal of the action.

20111107

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