Opinion
22-cv-07634-EJD
01-22-2024
GS HOLISTIC, LLC, Plaintiff, v. PUFF N GO GIFT SHOP LLC, et al., Defendants.
ORDER TO SHOW CAUSE
EDWARD J. DAVILA United States District Judge
On October 30, 2023, the Court issued an order (the “Order”) that determined, among other findings, that Plaintiff GS Holistic, LLC (“Plaintiff”) had made a sufficient showing of proper service on Defendant Puff N Go Gift Shop LLC (“Puff N Go”). See Order, ECF No. 34. This determination rested on Plaintiff's response to the Court's prior order to show cause following the Court's adoption in full of Magistrate Judge deMarchi's Report and Recommendation Re Motion for Default Judgment, which found that Plaintiff purported to have effected substitute service on Puff N Go, but did not provide sufficient information about the recipient of the service papers. See Order Adopting Magistrate Judge's Report & Recommendation; Order to Show Cause 2 (“Plaintiff must: . . . show proof of proper service as to Defendant Puff N Go, i.e., that Adam Isa was authorized to accept service of process on behalf of Puff N Go, or show good cause for the failure to properly serve Puff N Go.”), ECF No. 30; see also Report & Recommendation 4-6, ECF No. 27. Plaintiff timely responded to the order to show cause, stating that an accompanying updated proof of service showed proper service on Puff N Go and identified the registered agent authorized to accept service on behalf of Puff N Go. See Response to Order to Show Cause (“Response”) ¶¶ 7-8, ECF No. 32; Summons (Executed), ECF No. 31; Corrected Summons (Executed), ECF No. 33. The Court found the new proof of service adequately stated that service was effectuated “on an authorized agent, Adam [Isa].” Order 1-2.
However, it has come to the Court's attention that the proof of service filed by Plaintiff in response to the order to show cause is does not include additional about Mr. Isa, the purported recipient of Plaintiff's substitute service upon Puff N Go. Instead, the only change between the original and new proofs of service on Puff N Go is the addition of the name of Puff N Go's registered agent, Mohamed Alganim. See ECF Nos. 31, 33. Plaintiff does not state that service on Puff N Go was effectuated by service on Mr. Alganim in his capacity as Puff N Go's registered agent, by personal service or otherwise; rather, Plaintiff's response to the order to show cause reiterates that service on Puff N Go was made via substitute service on Mr. Isa. See Response ¶ 4; see id. ¶¶ 6-8.
Accordingly, the Court hereby ORDERS Plaintiff to show cause why the Court should not reconsider its prior Order and dismiss this action with respect to Defendant Puff N Go for failure to effect timely service, even after the Court's instruction to “show proof of proper service as to Defendant Puff N Go, i.e., that Adam Isa was authorized to accept service of process on behalf of Puff N Go, or show good cause for the failure to properly serve Puff N Go.” Order 2. The Court additionally ORDERS Plaintiff to show cause why the Court should not dismiss the action as to either or both remaining defendants-Puff N Go and defendant Abdullah Kaid Alawdi-for failure to prosecute the action by failing to file a motion for default judgment nearly three months following entry of default as to these defendants. Plaintiff SHALL file a response to this order by February 12, 2024, and the Court will hold a show cause hearing on February 29, 2024, at 10 a.m., in 280 South 1st Street, 5th Floor, Courtroom 4, San Jose, CA 95113.
IT IS SO ORDERED.