Block v. Salem ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 HENDRIK BLOCK, Case No. 1:22-cv-01596-JLT-BAM 11 Plaintiff, ORDER VACATING HEARING SET FOR JULY 14, 2023 12 v. ORDER DIRECTING PLAINTIFF TO 13 MOHAMED NASSER SALEM, individually SUBMIT SUPPLEMENTAL BRIEFING and dba QUICK MART, REGARDING MOTION FOR DEFAULT 14 JUDGMENT AGAINST DEFENDANT Defendant. 15 (Doc. 14) 16 TWENTY-ONE DAY DEADLINE 17 18 On June 2, 2023, Plaintiff Hendrik Block filed a motion for default judgment against 19 Defendant Mohamed Nasser Salem, individually and dba Quick Mart.1 (Doc. 14.) Following a 20 preliminary review of the motion, the Court finds supplemental briefing is warranted. 21 In deciding whether to grant or deny a default judgment, a court must assess the 22 adequacy of the service of process on the party against whom default is requested. See, e.g., 23 Trujillo v. Harsarb, Inc., No. 1:21-cv-00342-NONE-SAB, 2021 WL 3783388, at *4 (E.D. Cal. 24 Aug. 26, 2021) (“As a general rule, the Court considers the adequacy of service of process before 25 evaluating the merits of a motion for default judgment.”); Coach, Inc. v. Diva Shoes & 26 Accessories, No. 10-5151 SC, 2011 WL 1483436, at *2 (N.D. Cal. Apr. 19, 2011)); Katzakian v. 27 1 Check Resolution Service, Inc., No. 1:10-cv-00716 AWI GSA, 2010 WL 5200912, at *1 (E.D. Cal. 2 Dec. 15, 2010). 3 Federal Rule of Civil Procedure 4 sets forth the requirements for serving an individual within 4 a judicial district of the United States. Under Rule 4, an individual may be served by: (1) delivering 5 a copy of the summons and the complaint to that person personally; (2) leaving a copy of each at 6 the individual's dwelling or usual place of abode with someone of suitable age and discretion who 7 resides there; or (3) delivering a copy of each to an agent authorized by appointment or by law to 8 receive service of process. Fed. R. Civ. P. 4(e)(2). 9 Rule 4 also permits service on an individual in accordance with state law. Fed. R. Civ. P. 10 4(e)(1). California law permits substituted service by leaving a copy of the summons and complaint 11 at the defendant’s dwelling house, usual place of abode, usual place of business, or usual mailing 12 address (other than a U.S. Postal Service post office box). Cal. Code Civ. Proc. § 415.20(b). Copies 13 of the summons and complaint must be left “in the presence of a competent member of the 14 household or a person apparently in charge of [the defendant’s] office, place of business, or usual 15 mailing address,” and copies must thereafter be mailed to the defendant at the same address where 16 the documents were left. Id. 17 According to the proof of service on file, Plaintiff served a copy of the summons and 18 complaint on Defendant Salem by substituted service, leaving the documents with “Abdul Singh – 19 Person in Charge of Office” on February 1, 2023. (Doc. 4.) The documents were left at “2329 N 20 First St, Fresno, CA 93703,” which is the address for the Quick Mart facility identified in the 21 complaint. (Docs. 1, 4.) The proof of service identifies the manner of service as follows: 22 By leaving the copies with on the presence of Abdul Singh , (business) a person at least 18 years of age apparently in charge of the office or usual place of business of 23 the person served. I informed him/her of the general nature of the papers. I caused the copies to be mailed (if applicable). A declaration of mailing is attached. 24 25 (Doc. 4.) Copies of the summons and complaint also were mailed to the same address on February 26 8, 2023. (Id. at p. 3.) 27 Based on the proof of service, the Court cannot ascertain whether Plaintiff has properly 1 “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally 2 delivered to the person to be served[.]” See Cal. Civ. Proc. Code § 415.20(b). “[T]he burden is upon 3 the plaintiff to show reasonable diligence to effect personal service and each case must be judged 4 upon its own facts.” Evartt v. Super. Ct., 89 Cal. App. 3d 795, 801, 152 Cal. Rptr. 836 (Cal. Ct. 5 App. 1979). “Although there is no established formula for reasonable diligence, two or three 6 attempts to personally serve defendant at a ‘proper place’ ordinarily qualifies as ‘reasonable 7 diligence.’” Johnson v. Bozorghadad, No. 17-cv-06536-SVK, 2020 WL 963377, at *3 (N.D. Cal. 8 Feb. 28, 2020), report and recommendation adopted, No. 17-cv-06536-HSG, 2020 WL 1245122 9 (N.D. Cal. Mar. 16, 2020) (citation, internal quotation marks, and alteration omitted); see also 10 Trujillo v. Gogna, No. 1:22-cv-00707-JLT-SAB, 2023 WL 2301717, at *5 (E.D. Cal. Mar. 1, 11 2023). 12 Here, the return of service does not indicate whether the process server made any prior 13 attempts to personally serve Defendant Salem before proceeding with substituted service. The 14 Court has considered the proof of service, request for entry of default, and the motion for default 15 judgment, but there are no facts in any of these documents demonstrating reasonable diligence. 16 Accordingly, IT IS HEREBY ORDERED as follows: 17 1. The hearing on Plaintiff’s Motion for Default Judgment Against Defendant (Doc. 14) 18 currently set for July 14, 2023, is VACATED; 19 2. Within twenty-one (21) days from the date of this Order, Plaintiff shall file supplemental 20 briefing to address the service issues identified by the Court or to otherwise demonstrate 21 that Plaintiff has properly effectuated service on Defendant Salem; and 22 3. Following receipt of Plaintiff’s supplemental briefing, if any, the Court will take the 23 Motion for Default Judgment Against Defendant under submission. L.R. 230(g). 24 IT IS SO ORDERED. 25 26 Dated: June 21, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 27