Austin v. Lyft, Inc. ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 GEORGE JARVIS AUSTIN, 7 Case No. 21-cv-09345-JCS Plaintiff, 8 v. ORDER TO SHOW CAUSE WHY 9 MOTION FOR DEFAULT JUDGMENT LYFT, INC., SHOULD NOT BE DENIED 10 Defendant. Re: Dkt. No. 18 11 12 13 Plaintiff brings a Motion for Default Judgment (“Motion”), which the Court finds to be 14 defective in the following respects: 1) the Clerk’s Office has not entered Defendant’s default 15 pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, which is a prerequisite for bringing 16 a motion for default judgment under Rule 55(b) – any application for entry of default should be 17 made to the Clerk’s Office; and 2) to the extent the Motion may be seeking entry of default under 18 Rule 55(a) rather than default judgment under Rule 55(b), the request is premature because the 19 time for Defendant to respond has not yet passed, as is conceded in the Motion. See Motion at 4 20 (“The deadline for Defendant to respond will have passed by 1/13/22.”). 21 In addition, it appears that the complaint was served by certified mail, which is improper. 22 See id. (“Plaintiff effected service of the Summons and Complaint on Defendants (via US 23 Certified Mail by process server).”). Under Rule 4(h)(1) of the Federal Rules of Civil Procedure, a 24 corporation may be served either “in the manner prescribed by Rule 4(e)(1) for serving an 25 individual” or by “delivering a copy of the summons and of the complaint to an officer, a 26 managing or general agent, or any other agent authorized by appointment or by law to receive 27 service of process and—if the agent is one authorized by statute and the statute so requires—by 1 & (B). “Courts have uniformly rejected the possibility that the term “delivering” in Rule 2 4(h)(1)(B) includes service by mail. DH Holdings, LLC v. Meridian Link, Inc., No. CV 09-9117 3 ABC, 2010 WL 11597616, at *2 (C.D. Cal. Apr. 9, 2010) (listing cases). 4 Nor is service by certified mail proper under Rule 4(h)(1)(A), which allows corporations to 5 be served “in the manner prescribed by Rule 4(e)(1).” Rule 4(e)(1), in turn, provides that an 6 individual may be served by: 7 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court 8 is located or where service is made; or 9 (2) doing any of the following: 10 (A) delivering a copy of the summons and of the complaint to the individual personally; 11 (B) leaving a copy of each at the individual’s dwelling or usual place 12 of abode with someone of suitable age and discretion who resides there; or 13 (C) delivering a copy of each to an agent authorized by appointment 14 or by law to receive service of process. 15 Rule 4(e). 16 Under Rule 4(e)(1), service is proper if it complies with California law. California law 17 provides that a summons may be served by personal delivery of the summons and complaint to the 18 person to be served, California Code of Civil Procedure § 415.10, or by leaving a copy of the 19 summons and complaint during office hours at his or her office, and by thereafter mailing a copy 20 of the summons and complaint to be served at the place where a copy of the summons and 21 complaint was left, California Code of Civil Procedure § 415.20(a), or by leaving a copy at the 22 persons dwelling house or usual place of abode as required by California Code of Civil Procedure 23 § 415.20. Further, while California Code of Civil Procedure § 415.30 allows for service of the 24 summons and complaint by mail, service in that manner is valid only if the complaint and 25 summons are served with the required notice of acknowledgement and an envelope addressed to 26 the sender with prepaid postage and the recipient has signed and returned the acknowledgement of 27 receipt. There is no indication that service of the complaint and summons was accomplished in a 1 Further, service by mail is not proper under Rule 4(e)(2)(A) or (C), which require that the 2 complaint be “delivered” rather than mailed. As discussed above, mailing of a complaint and 3 summons does not constitute “delivery.” Nor does service by certified mail satisfy Rule 4 || 4(e)(2)(B), which requires not only that the summons and complaint be left at the defendant’s 5 || dwelling but also that it be left “with someone of suitable age and discretion who resides there.” 6 Fed. R. Civ. P. 4(e)(2)(b) (emphasis added). Therefore, it is clear that service of process also was 7 || not proper under this section. 8 Plaintiff may either withdraw the motion or file a response addressing why the Motion 9 should not be denied no later than December 27, 2021. Because the undersigned magistrate judge 10 does not have the consent of all parties pursuant to 28 U.S.C. § 636(c), if the Motion is not 11 withdrawn the case will be reassigned to a district judge with a recommendation as to the 12 || disposition of the Motion upon receipt of Plaintiffs response. IT IS SO ORDERED. 14 || Dated: December 13, 2021 15 JQSEPH C. SPERO a 16 ief Magistrate Judge = 17 Z 18 19 20 21 22 23 24 25 26 27 28