BMO Harris Bank N.A. v. Singh ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BMO HARRIS BANK N.A., national Case No. 1:23-cv-00067-BAM association, 12 ORDER VACATING HEARING SET FOR Plaintiff, APRIL 28, 2023 13 v. ORDER DIRECTING PLAINTIFF TO 14 SUBMIT SUPPLEMENTAL BRIEFING JASVINDER SINGH, an individual resident REGARDING MOTION FOR ENTRY OF 15 and citizen of California dba NS DEFAULT JUDGMENT TRANSPORT; DOES 1-10, 16 (Doc. 8) Defendants. 17 TWENTY-ONE DAY DEADLINE 18 19 On March 16, 2023, Plaintiff BMO Harris Bank N.A. (“Plaintiff”) filed a motion for 20 entry of default judgment against Defendant Jasvinder Singh dba NS Transport (“Defendant”). 21 (Doc. 8.) Following a preliminary review of the motion, the Court finds supplemental briefing 22 is warranted. 23 In deciding whether to grant or deny a default judgment, a court must assess the 24 adequacy of the service of process on the party against whom default is requested. See, e.g., 25 Trujillo v. Harsarb, Inc., No. 1:21-cv-00342-NONE-SAB, 2021 WL 3783388, at *4 (E.D. Cal. 26 Aug. 26, 2021) (“As a general rule, the Court considers the adequacy of service of process 27 before evaluating the merits of a motion for default judgment.”); Coach, Inc. v. Diva Shoes & 1 v. Check Resolution Service, Inc., No. 1:10-cv-00716 AWI GSA, 2010 WL 5200912, at *1 2 (E.D. Cal. Dec. 15, 2010). 3 According to the proof of service on file, Plaintiff served Defendant with the summons and 4 complaint by substituted service at his “Home” located at “3661 West Shield Avenue, #263, Fresno, 5 CA 93722,” by leaving a copy of the summons and complaint with the co-occupant, John Doe, on 6 February 10, 2023. (Doc. 5) (emphasis added). Thereafter, a copy of the summons and complaint 7 were mailed to Defendant at the same address. (Id.) 8 However, the Complaint alleges that Defendant is “residing at 3661 W. Shields, Apt 263, 9 Fresno, CA 93722.” (Doc. 1 at ¶ 5.) Similarly, documents attached to the Complaint and motion 10 for default judgment identify the address as: 3661 W SHIELDS APT 263. (See, e.g., Doc. 1 at pp. 11 24, 30, 37; Doc. 8-1 at p. 25 (Ex. 2), p. 31 (Ex. 3), p. 38 (Ex. 4), p. 71 (Ex. 9)) (emphasis added). 12 Additionally, Plaintiff’s motion for default judgment indicates that Defendant was served 13 not at his home or residence, but at his business address. Indeed, the motion asserts that Defendant 14 “was sub-served pursuant to Cal. Civ. Proc. Code § 415.20(a) on February 10, 2023, by leaving a 15 copy of the summons and complaint at their business address located at 3661 West Shield Avenue 16 #263, Fresno, California 93722.” (Doc. 8 at p. 2) (emphasis added). The cited subsection of the 17 California Civil Procedure Code also addresses service of the summons and complaint at a person’s 18 “office.” Cal. Civ. Proc. Code § 415.20(a). 19 On the current record, the Court will not presume that service was proper in light of the 20 differing street names and the differing characterization of the address for service. Therefore, the 21 Court will vacate the hearing currently scheduled for April 28, 2023, and require Plaintiff to submit 22 supplemental briefing clarifying, correcting, or otherwise explaining the identified discrepancies. 23 Accordingly, IT IS HEREBY ORDERED as follows: 24 1. The hearing on Plaintiff’s Motion for Entry of Default Judgment (Doc. 8) is 25 VACATED; 26 2. Within twenty-one (21) days, Plaintiff shall file supplemental briefing clarifying, 27 correcting, or otherwise explaining the service discrepancies identified in this Order; and 1 3. Following receipt of Plaintiff’s supplemental briefing, the Court will take the Motion for 2 Entry of Default Judgment under submission. L.R. 230(g). 3 IT IS SO ORDERED. 4 5 Dated: April 18, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27