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Paul Hupp v. San Diego County District and Attorney

July 12, 2012

PAUL HUPP,
PLAINTIFF,
v.
SAN DIEGO COUNTY DISTRICT AND ATTORNEY;
SAN DIEGO COUNTY OFFICE OF ASSIGNED COUNSEL;
SAN DIEGO COUNTY SHERIFF'S DEPARTMENT;
SAN DIEGO POLICE DEPARTMENT;
JAMES PATRICK ROMO; AGAINST CHARLIE WETZEL; WILLIAM J.AND KIERNAN; P. MYERS; AND ROES 1-10, WETZEL SHOULD NOT BE SET INDIVIDUALLY, JOINTLY, JOINTLY AND SEVERALLY, ASIDE DEFENDANTS.



The opinion of the court was delivered by: Irma E. GONZALEZUnited States District Judge

ORDER:

(1) GRANTING JOINT MOTION TO SET ASIDE DEFAULT AGAINST DEFENDANTS SD OAC AND MYERS; [Doc. No. 42] (2) GRANTING MOTIONS TO SET ASIDE DEFAULT AGAINST DEFENDANTS SD SHERIFF'S DEPT. AND KIERNAN; [Doc. Nos. 31, 39] (3) DENYING IN PART MOTION FOR DEFAULT JUDGMENT; [Doc. No. 28] (4) TO SHOW CAUSE WHY THE ENTRY OF DEFAULT DEFENDANTS SDPD

Presently before the Court are the following four motions: (1) Plaintiff Paul Hupp ("Plaintiff")'s motion for default judgment against Defendants San Diego Office of Assigned Counsel ("SD OAC"), San Diego County Sheriff's Department ("SD Sheriff's Dept."), San Diego Police Department ("SDPD"), Charlie Wetzel ("Wetzel"), William J. Kiernan ("Kiernan"), and P. Myers*fn1 ("Myers") [Doc. No. 28]; (2) Defendant SD Sheriff's Dept.'s motion to set aside the entry of default [Doc. No. 31];*fn2 (3) Defendant Kiernan's motion to set aside the entry of default [Doc. No. 39];*fn3 and (4) Plaintiff and Defendants SD OAC and Myers' joint motion to set aside the entry of default. [Doc. No. 42.] For the reasons below, the Court GRANTS the motions to set aside the entry of default against Defendants SD OAC, SD Sheriff's Dept., Kiernan, and Myers, DENIES IN PART Plaintiff's motion for default judgment, and ORDERS Plaintiff TO SHOW CAUSE why the entry of default against Defendants SDPD and Wetzel should not be set aside for failure to properly serve them with the summons and complaint in this action.

BACKGROUND

Plaintiff commenced this action on February 28, 2012 against Defendants San Diego County District Attorney ("SD DA"), SD OAC, San Diego County Superior Court ("SD Superior Court"), SD Sheriff's Dept., SDPD, Jeffrey Howard Freedman ("Freedman"), John Sargent Meyer ("Judge Meyer"), James Patrick Romo ("Romo"), Theodore Stephen Drcar ("Drcar"), Wetzel, Kiernan, and Myers alleging causes of action for violations of his civil rights and intentional infliction of emotional distress. [Doc. No. 1.] On April 2, 2012, Plaintiff filed a first amended complaint ("FAC") asserting twelve causes of action against these Defendants. [Doc. No. 4.]*fn4

Defendants SD OAC, SD Sheriff's Dept., SDPD, Wetzel, Kiernan, and Myers have not yet filed an answer to the FAC or a motion to dismiss the FAC. When these six Defendants failed to respond to the FAC, Plaintiff filed a motion for the entry of default against the Defendants along with the present motion for default judgment. [Doc. No. 28.] On May 16, 2012, the Clerk of Court entered default against Defendants SD OAC, SD Sheriff's Dept., SDPD, Wetzel, Kiernan, and Myers. [Doc. No. 29.]

By the present motion for default judgment, Plaintiff requests monetary damages and injunctive relief against these six Defendants. [Doc. No. 28, Declaration of Paul Hupp ("Hupp Decl.").] By the other three motions, Defendants SD OAC, SD Sheriff's Dept., Kiernan, and Myers request that the Court set aside the Clerk's entry of default against them. [Doc. Nos. 31, 39, 42.]

DISCUSSION

I. The Joint Motion to Set Aside the Entry of Default

Plaintiff and Defendants SD OAC and Myers filed a joint motion to set aside the entry of default against those two Defendants. [Doc. No. 42.] In exchange for Plaintiff agreeing to join in the motion, Defendant County of San Diego agreed to accept service on behalf of both SD OAC and Myers. [Id.] Accordingly, the Court GRANTS the joint motion and sets aside the entry of default against Defendants SD OAC and Myers.

II. SD Sheriff's Dept. and Kiernan's Motions to Set Aside the Entry of Default

Defendants SD Sheriff's Dept. and Kiernan argue that the Court should set aside the entry of default against them because they were never properly served with the complaint and summons in this action. [Doc. No. 31-1 at 6; Doc. No. 39 at 2.] "A court may set aside an entry of default as void where the defendant demonstrates defects in the service of process." Dorr v. Alameda County Prob. Dep't, 2012 U.S. Dist. LEXIS 15613, at *4 (N.D. Cal. Feb. 8, 2012) (citing SEC v. Internet Solutions for Bus., Inc., 509 F.3d 1161, 1165-66 (9th Cir. 2007)).

Federal Rule of Civil Procedure 4 governs the service of process in federal court. Brockmeyer v. May, 383 F.3d 798, 800 (9th Cir. 2004). "Defendants must be served in accordance with [Rule 4], or there is no personal jurisdiction." Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982) (footnote omitted). "Neither actual notice, nor simply naming the person in the caption of the complaint, will subject defendants to personal jurisdiction if service was not made in substantial compliance with Rule 4." Id. (internal citations omitted). ...


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