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Lucio A. Barroga v. Board of Administration

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


July 3, 2012

LUCIO A. BARROGA, PLAINTIFF,
v.
BOARD OF ADMINISTRATION, CAL PUBLIC EMPLOYEES' RETIREMENT SYSTEM (PERS), DEFENDANT.

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

ORDER

Presently before the court is plaintiff's motion for entry of a default judgment by the Clerk of Court, filed pursuant to Federal Rule of Civil Procedure 55(b)(1) and seeking a judgment for "a sum certain or a sum that can be made certain by computation."*fn1 Plaintiff seeks a judgment "in the amount of $1,568,410.50 and a monthly pension of $3,612.69 starting from January 2012 accruing and accumulating." (Motion at 2; see also Barroga Decl. at 1.)

In short, the court finds that plaintiff does not seek a sum certain or a sum that can be made certain by computation. Among other things, the exhibits attached to plaintiff's declaration consist of an unsworn analysis and table prepared by plaintiff, which do not establish plaintiff's entitlement to the judgment and ongoing payments sought. Accordingly, plaintiff's motion is denied.

In addition to denying plaintiff's motion for a Rule 55(b)(1) judgment by default, the court also vacates the Clerk's Certificate of Entry of Default filed on June 11, 2012 (Dkt. No. 7). Despite the entry of default by the Clerk, plaintiff did not properly serve defendant with the summons and complaint. Plaintiff represents that he personally served defendant with process (Dkt. No. 4), but a party cannot effectuate personal service of process under Federal Rule of Civil Procedure 4. See Fed. R. Civ. P. 4(c)(2) ("Any person who is at least 18 years old and not a party may serve a summons and complaint") (emphasis added). Accordingly, service of process was not proper, and plaintiff was not entitled to the Clerk's entry of default in the first place. Failure to properly serve defendant also supports denial of the motion for a default judgment.*fn2

There are a host of other problems with plaintiff's lawsuit. Among other problems, it appears from plaintiff's complaint and attached exhibits that he has been litigating this same claim for retirement benefits since the early 1990s in both the Los Angeles County Superior Court ("Superior Court") and the United States District Court for the Central District of California ("Central District").*fn3 It also appears that plaintiff unsuccessfully appealed various adverse decisions made by the Superior Court and the Central District all the way to the California Supreme Court and the U.S. Supreme Court, both of which denied review. Accordingly, the court is significantly concerned that this case is barred by claim or issue preclusion. See, e.g., Barroga v. Bd. of Amin. of Cal. Employees' Retirement Sys., 235 Fed. Appx. 414, 415 (9th Cir. 2007) ("The district court properly concluded this action was barred by res judicata because it restated claims raised in Barroga's prior lawsuits seeking pension benefits from CalPERS."). However the court need not resolve the question of claim or issue preclusion at this time because service of process was not proper at the outset of this case.

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for entry of a default judgment by the Clerk of Court pursuant to Federal Rule of Civil Procedure 55(b)(1) (Dkt. No. 8) is denied.

2. The Clerk of Court is directed to vacate the Clerk's Certificate of Entry of Default filed on June 11, 2012 (Dkt. No. 7).

IT IS SO ORDERED.


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