Gilbert v. Mohamad ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DARREN GILBERT, Case No. 1:22-CV-554 JLT EPG 11 Plaintiff, ORDER VACATING HEARING; REQURING SUPPLEMENTAL BRIEFING AS TO 12 v. SERVICE 13 ABDO N. MOHAMAD, et al., (ECF No. 11). 14 Defendants. 15 16 17 Pending before the Court is Plaintiff Darren Gilbert’s (“Plaintiff”) motion for default 18 judgment against Defendants Abdo N. Mohamad and Nasser M. Obdaid dba Olsen Service 19 Station (“Defendants”). (ECF No. 11.) As discussed below, the Court will grant Plaintiff leave to 20 submit further supplemental briefing in support of his motion. 21 I. SERVICE 22 Before awarding a default judgment against a defendant, the Court must determine the 23 adequacy of service of process, as well as the Court’s jurisdiction over the subject matter and the 24 parties. In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (“When entry of judgment is sought against 25 a party who has failed to plead or otherwise defend, a district court has an affirmative duty to look 26 into its jurisdiction over both the subject matter and the parties.”); Kaldawi v. Kuwait, 709 F. 27 App’x 452, 453 (9th Cir. 2017) (“When entry of judgment is sought against a party who has 28 failed to plead or otherwise defend, a district court has an affirmative duty to look into its 1 jurisdiction over both the subject matter and the parties.”); cf. S.E.C. v. Internet Sols. for Bus. 2 Inc., 509 F.3d 1161, 1165 (9th Cir. 2007) (“We review de novo whether default judgment is void 3 because of lack of personal jurisdiction due to insufficient service of process.”). 4 Federal Rule 4(e)(2)(B) permits service by “leaving a copy of [the summons and 5 complaint] at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there[.]” California law, in turn, permits substituted service 6 upon an individual by: 7 “leaving a copy of the summons and complaint . . . at his or her usual mailing 8 address . . . with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail.” 9 Cal. Code Civ. P. § 415.20(a). 10 Plaintiff’s motion does not address whether service on Defendants was adequate or 11 whether the Court has jurisdiction over the parties. Plaintiff’s motion states that Defendant Nasser 12 M. Obaid was “personally served with the Summons and Complaint pursuant to Federal Rule of 13 Civil Procedure 4(e)(2)(A).” (ECF No. 11-1, p. 10). According to the proof of service filed by 14 Plaintiff, Defendant Obaid was served “by personally delivering copies” at 1941 Yellow Pine 15 Drive, Modesto, CA 95351. (ECF No. 4). 16 Additionally, Plaintiff’s motion states that Defendant Abdo N. Mohamad was served “by 17 substituted service pursuant to Federal Rule of Civil Procedure 4(e)(2)(B)” and California Code 18 of Civil Procedure 415.20(b). (ECF No. 11-1, p.10). The proof of service filed by Plaintiff as to 19 Defendant Mohamad indicates that Defendant Mohamad was served by leaving a copy of the 20 summons and complaint at 4137 Mayfield Dr., Modesto, CA 95356 with a Jane Doe described as 21 “a competent member of the household” (ECF No. 5). 22 However, Plaintiff’s briefing does not address whether 4137 Mayfield Dr., Modesto, CA 23 95356 is Defendant Mohamad’s “dwelling or usual place of abode” under Rule 4(e)(2)(B) or their 24 “usual mailing address” under California Code of Civil Procedure § 415.20(b).1 Accordingly, the Court will give Plaintiff leave to supplement his motion to address the 25 26 1 In support of the motion, Plaintiff’s counsel submits a declaration which states that 4137 Mayfield Drive Modesto, CA 95356 was identified as the residential address for Abdo M. Mohamad “through a search on the Lexis Advance 27 public records database.” (ECF No. 11-2, p. 3). Because Plaintiff’s briefing does not address the issue, it is not clear to the Court if the Lexis Advance public records search establishes Defendant Mohamad’s address for purposes of 28 service. 1 || adequacy of service and the Court’s jurisdiction over the subject matter and the parties. 2 Il. ORDER 3 Based on the foregoing, IT IS ORDERED as follows: 4 1. The hearing set for November 18, 2022 (ECF Nos. 11, 12) is vacated; 5 2. Plaintiff shall have until November 18, 2022, to file a supplemental brief in support of 6 Plaintiff's motion for default judgment, specifically addressing how service was properly 7 achieved under Rule 4(e)(2)(b) or California law; g 3. The Court will reset the hearing, if necessary, at a later date. ? | ITIS SO ORDERED. 10 1, | Dated: _October 24, 2022 [fe Fey — UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28