Choudhuri v. Specialized Loan Servicing ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KABITA CHOUDHURI, Case No. 22-cv-06993-JST 8 Plaintiff, ORDER DENYING MOTION FOR 9 v. ENTRY OF DEFAULT JUDGMENT; ORDER TO SHOW CAUSE RE: 10 SPECIALISED LOAN SERVICING, et al., SERVICE 11 Defendants. Re: ECF No. 54 12 13 The second amended complaint in this case was filed on November 7, 2023. As of the date 14 of this order, the docket reflects no evidence that the summons and complaint have been served on 15 Defendant Bosco Credit LLC. Plaintiff has submitted the declaration of Leila Sen, averring that 16 she served the complaint on Bosco by mail and email to Bosco at an address in Jersey City, New 17 Jersey. ECF No. 52-2. Because Plaintiff has not also submitted a written acknowledgement from 18 Bosco, such service was not effective: 19 Although service of a summons and complaint by mail is effective under California law and is thus effective in this judicial district 20 pursuant to Federal Rule 4(e), such service is only “deemed complete on the date a written acknowledgement of receipt of 21 summons is executed, if such acknowledgement thereafter is returned to the sender.” Cal. Civ. Proc. Code § 415.30(c). 22 Therefore, absent written acknowledgment of receipt of summons (such as an executed waiver of service), service by mail is not 23 effective in California. 24 Murillo v. Ramos, No. 3:22-CV-00548-TWR(AHG), 2023 WL 4375644, at *2 (S.D. Cal. July 6, 25 2023); see also Nesbit v. Sunrise Restaurants, No. 223CV02822SVWMAA, 2023 WL 5498887, at 26 *1 (C.D. Cal. June 23, 2023) (“Plaintiff’s service by certified mail was ineffective under the 27 federal rules and California state law, since he did not include a notice of acknowledgement and 1 there is no evidence that defendant signed and returned the acknowledgement of receipt.”’). 2 || Plaintiffs attempted service by email was also ineffective. See Nesbit, 2023 WL 5498887, at *1. 3 Because Plaintiff has not effected valid service on Bosco, her motion for entry of default as 4 to that defendant, ECF No. 54, is denied. 5 Plaintiff must now either properly serve Bosco or show cause why she has not done so. 6 || Rule 4(m) of the Federal Rules of Civil Procedure provides, in relevant part: 7 If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must 8 dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows 9 good cause for the failure, the court must extend the time for service for an appropriate period. 10 Fed. R. Civ. P. 4(m). 11 On February 5, 2024, 90 days will have passed since the filing of the second amended 12 complaint, and 454 days will have passed since the filing of the initial complaint. Plaintiff must 13 therefore either serve Bosco by February 5, 2024, or show cause why Bosco should not be 14 dismissed for failure to serve. If Bosco has not been served by February 5, 2024, Plaintiff must 15 5 file a written response to this order by February 20, 2024. The Court will conduct a hearing on the 16 order to show cause on May 14, 2024, at 2:00 p.m. 17 IT IS SO ORDERED. Z 18 Dated: January 29, 2024 19 20 JON S. TIGA nited States District Judge 21 22 23 24 25 26 27 28