-GGH Johnson v. Matsui Management Corporation, No. 2:2010cv03269 - Document 14 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 9/16/11 ORDERING that the default entered 3/10/11 is VACATED; and RECOMMENDING that Plaintiff's amended motion for entry of default judgment be denied. Referred to Judge Morrison C. England, Jr. Objections due within 21 days after being served with these findings and recommendations. (Becknal, R)

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-GGH Johnson v. Matsui Management Corporation Doc. 14 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 SCOTT N. JOHNSON, 11 Plaintiff, 12 13 No. CIV S-10-3269 MCE GGH vs. MATSUI MANAGEMENT CORPORATION, ORDER and 14 Defendant. FINDINGS AND RECOMMENDATIONS 15 / 16 17 Plaintiff’s amended motion for default judgment against Matsui Management 18 Corporation, filed May 27, 2011, was submitted without a hearing. Defendant filed no 19 opposition. Upon review of the motion and supporting documents, the court finds that good 20 cause to grant the motion is lacking. 21 Service on the defendant corporation appears to be improper. The proof of 22 service indicates only that an individual named Tome Matsuhashi, described as a “person in 23 charge at time of service,” was the recipient of the papers delivered by the process server. See 24 docket no. 5. In the case of a corporation, service must be effectuated in accordance with Fed. R. 25 Civ. P. 4(h). Service of process in the state of California requires either service on an agent 26 designated for service of process, a chief officer of the corporation, or someone authorized to 1 Dockets.Justia.com 1 receive service of process; Cal. Code Civ. Proc. § 416.10; or, if none of those, by leaving a copy 2 of the summons and complaint during office hours with a “person who is apparently in charge,” 3 and thereafter mailing a copy of the summons and complaint by U.S. Mail. Cal. Code Civ. Proc. 4 § 415.20 (emphasis added). In this case, even if the individual who accepted service of process 5 did not meet the requirements set forth in § 416.10, there is no indication of follow-up service by 6 U.S. Mail pursuant to § 415.20. Because service of summons does not comply with Fed. R. Civ. P. 4(h), the court 7 8 will vacate the entry of default inasmuch as service of summons has not yet been properly 9 effected. 10 For the foregoing reasons, IT IS HEREBY ORDERED that: 11 The default entered March 10, 2011 is vacated. 12 IT IS HEREBY RECOMMENDED: 13 Plaintiff’s amended motion for entry of default judgment, filed May 27, 2011, 14 (dkt. no.12), is denied without prejudice. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 17 one days after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 20 shall be served and filed within fourteen days after service of the objections. The parties are 21 advised that failure to file objections within the specified time may waive the right to appeal the 22 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 DATED: September 16, 2011 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 24 25 GGH:076/Johnson3269.def.wpd 26 2

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