United States of America v. Weldon et al, No. 1:2008cv01643 - Document 34 (E.D. Cal. 2009)

Court Description: **WITHDRAWN Pursuant to 43 Order** FINDINGS and RECOMMENDATIONS recommending denial of 31 the government's MOTION for DEFAULT JUDGMENT filed by United States of America. Matter referred to Judge O'Neill; Objections to F&R due within 30 days after being served with a copy of F&R; signed by Magistrate Judge Sandra M. Snyder on 12/14/2009. (Timken, A)

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United States of America v. Weldon et al Doc. 34 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 UNITED STATES OF AMERICA, 10 Plaintiff, 11 12 CASE NO. 1:08-cv-01643-LJO-SMS FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF THE GOVERNMENT’S MOTION FOR DEFAULT JUDGMENT v. LOWELL D. WELDON, et al., 13 Defendants. (Doc. 31) / 14 15 Pending before the court is the United States’ (“government”) Motion for Entry of 16 Default Judgment against defendants Lowell D. Weldon, Bessie L. Weldon and Midland 17 Mortgage Company (“Midland”)(collectively, the “defendants”).1 This court has reviewed the 18 papers and has determined that this matter is suitable for decision without oral argument pursuant 19 to Local Rule 78-230(h). Having considered all written materials submitted, the undersigned 20 recommends that the government’s motion be denied. 21 After reviewing plaintiff’s motion, supporting briefs and exhibits, this court finds that 22 plaintiff has not established legally sufficient service on defendants. Summonses were issued 23 against all defendants on October 28, 2008 (doc. 2). Midland was not served (doc. 5). Although 24 both Lowell D. and Bessie L. Weldon were purportedly served on December 11, 2008, and their 25 respective summonses returned executed on January 14, 2009 (docs. 8 and 9), nothing on either 26 /// 27 28 1 This motion does not address defendants County of Fresno or State of California Franchise Tax Board. 1 Dockets.Justia.com 1 returned summons identifies which of the seven defendants was served. Indeed, the summonses 2 submitted for recording as documents 8 and 9 are completely identical, listing all seven 3 defendants in the portion of the summons intended to set forth the name of the defendant upon 4 whom it is to be served. 5 Accordingly, the undersigned HEREBY RECOMMENDS that the government’s motion 6 for the entry of default judgment against defendants Lowell D. Weldon, Bessie L. Weldon and 7 Midland Mortgage Company be denied. 8 9 These findings and recommendations are submitted to the Honorable Lawrence J. O’Neill, United States District Court Judge, pursuant to the provisions of 28 U.S.C. 10 § 636(b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District 11 Court, Eastern District of California. Within thirty (30) days after being served with a copy, any 12 party may file written objections with the court, serving a copy on all parties. Such a document 13 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 14 Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The 15 parties are advised that failure to file objections within the specified time may waive the right to 16 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 19 20 IT IS SO ORDERED. 21 Dated: icido3 December 14, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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