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Herman Pearl Company, et al v. Global Freight Services

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


September 26, 2012

HERMAN PEARL COMPANY, ET AL., PLAINTIFF,
v.
GLOBAL FREIGHT SERVICES, LLC, ET AL., DEFENDANTS.

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

ORDER

Plaintiff has filed a motion for default judgment against defendant Robert Barrientos dba Robar Transportation Company. The motion, as presently noticed, is defective in several respects. The motion was not accompanied by a memorandum of points and authorities in support of the motion, setting forth the elements of the claims for relief and explaining how the evidentiary materials submitted in support of the motion support the claims for relief. Moreover, the declaration of Amy Johnson, submitted in support of the motion for default judgment, does not set forth the basis for the calculation of damages and is inconsistent with the exhibits submitted with the complaint and on a prior motion for default judgment. See dkt. no. 1 at 3:15 (complaint alleges wholesale value of allegedly converted goods is $261,450.60); dkt no. 1-1 (exhibit setting forth inventory in dispute); dkt. no. 22-5 (Johnson declares wholesale price of stolen merchandise is $261,450.60); cf. dkt. no. 42-2 (Johnson declares wholesale price of stolen merchandise is $191,392.92; quantities itemized in attached exhibit differ from prior declaration).

Moreover, review of the docket appears to indicate infirmities in the service of process. Two proofs of service have been filed regarding service of the complaint and cross complaint on defendant Barrientos. The place of the alleged service of summons is an address for the Sacramento County Jail. See dkt. nos. 19, 26. It is unclear from the proofs of service the circumstances under which defendant Barrientos was served, if in fact he was served at the County Jail while incarcerated, and whether he has ever been served with the complaint, given that the amended proof of service indicates that defendant Barrientos was served with the cross-complaint and not the complaint. In the absence of further affidavit of the process server regarding the manner of service and the documents served, the entry of defaults against this defendant will be vacated.

Accordingly, IT IS HEREBY ORDERED that:

1. The hearing date of October 24, 2012 on plaintiff's motion for default judgment is vacated.

2. The motion for default judgment (Dkt. No. 44) is denied without prejudice.

3. The defaults entered against Robert Barrientos dba Robar Transportation Company (Dkt. Nos. 24, 34) are vacated.

20120926

© 1992-2012 VersusLaw Inc.



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