United States District Court, E.D. California
ORDER ON REQUEST FOR ENTRY OF DEFEAULT (Doc. No.
13, 2017, Plaintiff filed a request for the Clerk of Court to
a make an entry of default with respect fifteen Defendants.
See Doc. No. 50. Of these fifteen Defendants,
Plaintiff has shown the fourteen were served with a summons
and a copy of the First Amended Complaint
(“FAC”). One Defendant, Enrique Franco, was
served with a summons and the Second Amended Complaint
(“SAC”). See Doc. No. 43.
Rule of Civ. Procedure 5(a) states that, in the absence of an
assertion of a “new claim for relief” against the
non-appearing party, “[n]o service is required on a
party who is in default for failing to appear.”
Fed.R.Civ.P. 5(a)(2). For purposes of Rule 5(a)(2), a party
who has failed to appear in the case is a party in
“default for fail[ing] to appear, ” even if the
clerk has not yet made an entry of default in the docket.
See Cutting v. Allenstown, 936 F.2d 18, 21 n.1 (1st
Cir. 1991); Varnes v. Local 91, Glass Bottle Blowers
Ass'n of U.S. and Canada, 674 F.2d 1365, 1368 n.3
(11th Cir. 1982); Sharp v. Maricopa Cty., 2009 U.S.
Dist. LEXIS 116746, *4 (D. Ariz. Nov. 6, 2009). Here, a
review of the FAC and the SAC reveal that no additional
claims were included in the SAC with respect to the fourteen
other non-responding Defendants. Cf. Doc. No. 10
with Doc. No. 37. Therefore, service of the SAC was
required for Enrique Franco, but not necessary with respect
to the fourteen other Defendants. See Fed.R.Civ.P.
5(a)(2); Aifang v. Velocity VIII, L.P., 2016 U.S.
Dist. LEXIS 132633, *5 (C.D. Cal. Sept. 26, 2016); Rood
v. Nelson, 2014 U.S. Dist. LEXIS 128723, *14-*15 (D.
Nev. Sep. 15, 2014).
has submitted an application that refers the Court to returns
of summons/proofs of service in the docket, as well as a
declaration by Plaintiff's counsel that explains how the
fifteen Defendants were served and when the time to file a
response had lapsed. See Doc. No. 50. A review of
the docket shows that fifteen Defendants were either
personally served or served by leaving a copy of the summons
and amended complaint with a person of suitable age. This is
consistent with Federal Rules of Civil Procedure 4(e)(1),
4(e)(2)(A), and 4(e)(2)(B), California Code of Civil
Procedure §§ 415.10 and 415.20, and Washington
Revised Code § 4.28.080(16). See Doc. Nos. 17,
18, 20-30, 47-49; cf. Wright v. City of Las Vegas,
395 F.Supp.2d 789, 797-99 (S.D. Iowa 2005). It appears to the
Court that service of process was properly affected as to
thirteen of the fifteen defendants under the appropriate
federal, California, and Washington service
respect to Defendant Jasmine Roxanne Dalton
(“Jasmine”), she is alleged to be a minor.
See Doc. No. 10 at ¶ 17. Plaintiff does bring
suit against Jasmine through Robert D. Dalton, who is alleged
to be her guardian ad litem. See id. Federal Rule of
Civil Procedure 4(g) provides a minor in a United States
judicial district “must be served by following state
law for serving a summons or like process on such [minor] in
an action brought in the courts of general jurisdiction of
the state where service is made.” Fed.R.Civ.P. 4(g).
The return of summons indicates that service was attempted to
be served on Jasmine in Merced, California. See Doc.
No. 48. California Code of Civil Procedure § 416.60
provides: “A summons may be served on a minor by
delivering a copy of the summons and the complaint to his
parent, guardian, conservator, or similar fiduciary, or, if
no such person can be found with reasonable diligence, to any
person having the care or control of such minor or with whom
he resides or by whom he is employed, and to the if he is at
least 12 years of age.” Cal. Code Civ. P. §
416.60. Thus, if the minor is at least 12 years old, both the
minor and the minor's parent, guardian, etc. must be
served. See In re Orlando C., 186 Cal.App.4t h 1184,
1190 (2010). The Court is not satisfied that § 416.60
has been followed. First, it is not clear how old Jasmine is.
Second, the Court has concerns with respect to the actual
status of Robert Dalton. Although Robert Dalton is alleged to
be a guardian ad litem, there is no indication as to when or
how Robert Dalton was appointed to be Jasmine's guardian
ad litem. Because the Court is not satisfied that §
416.60 has been sufficiently followed, an entry of default
will not be entered at this time with respect to Jasmine.
Plaintiff may file a new request of entry of default that
adequately demonstrates compliance with Rule 4(g) and §
Defendant Angelica Maria Acevedo Cisneros, the proof of
service is similar to all of the other proofs of service.
See Doc. No. 30. The proof of service is on a
pre-printed form. See id. The box for
“substitute service” is checked and indicates
that the summons and complaint were served on Adam Sanchez.
See id. However, unlike other proofs of service, the
“home” box (Box 5(b)(2)) on the form is not
checked. See id. There are three options for the
process server to identify the address, a business (Box
5(b)(1)), a home (Box 5(b)(2), and a unknown physical address
(Box 5(b)(3)). See id. The proof of service for
Angelica Maria Acevedo Cisneros is the only proof that does
not indicate that the Defendant was served at her dwelling or
usual place of abode. Therefore, the Court is not satisfied
that service has been accomplished through Rule 4(e)(2),
California Code of Civil Procedure 415.20, or Washington
Revised Code § 4.28.080(16). An entry of default will
not be permitted with respect to Angelica Maria Acevedo
Cisneros. Plaintiff may file a new request for entry of
default that shows sufficient compliance with the relevant
it appears that service of process has been made under Rule
4(e), California Civil Code §§ 415.10 and 415.20,
and Washington Revised Code § 4.28.080(16), and the time
to respond to the complaint has lapsed, the Court will direct
the Clerk to make entries of judgment as required by Federal
Rule of Civil Procedure 55(a) with respect to the thirteen of
the fifteen defendants.
IT IS HEREBY ORDERED that:
Plaintiff's request for the Clerk to make an entry of
default is GRANTED in part;
Pursuant to Federal Rule of Civil Procedure 55(a), the Clerk
shall make an entry of default with respect to the following
a. Enrique Franco;
b. Cesar Neri;
c. Selene Cati Silva;
d. Amairani Cati ...