Opinion
Case No.: 1: 11-cv-00062-AWI-BAM
01-04-2012
HEATHER ESGET, Plaintiff, v. TCM FINANCIAL SERVICES, LLC; and DOES 1 TO 100, inclusive, Defendants.
ORDER DENYING PLAINTIFF'S
MOTION FOR DEFAULT JUDGMENT
(Document 16)
On October 3, 2011, Plaintiff Heather Esget ("Plaintiff") filed the present motion for default judgment against Defendant TCM Financial Services, LLC ("Defendant"). The Court deemed the matter suitable for decision without oral argument pursuant to Local Rule 230(g), and vacated the hearing scheduled for November 4, 2011. For the reasons that follow, the Court DENIES Plaintiff's motion without prejudice.
RELEVANT PROCEDURAL BACKGROUND
On January 12, 2011, Plaintiff filed a complaint against Defendant asserting violations of the Fair Debt Collection Practices Act and the Rosenthal Fair Debt Collection Practices Act. (Doc. 1.) A summons was issued to Defendant that same date. (Doc. 4.)
On April 13, 2011, Plaintiff filed a Declaration of Service regarding service of the summons and complaint and related documents. The proof of service stated that process server Livingston A. Beckford of DDS Legal Support served Javier Jimenez, a "principal" of TCM Financial Services LLC, by way of substitute service on "RICHARD (DOE)," the person apparently in charge, at 5900 S. Eastern Avenue in Commerce, California on March 22, 2011. The following day, on March 23, 2011, Pam Miller of DDS Legal Support served the same documents via United States Mail to "Javier Jimenez, Principal, 5900 S. Eastern Ave., Commerce, CA 900401." (Doc. 6 at 2.)
On May 5, 2011, the Clerk of the Court entered default against Defendant TCM Financial Services LLC, following Plaintiff's request. (Docs. 7-8.) On August 17, 2011, Plaintiff filed a motion for default judgment with this Court. (Doc. 10.) On September 13, 2011, the Court denied Plaintiff's motion for default judgment. (Doc. 14.) The grounds for the Court's denial of Plaintiff's motion for default judgment were as follows: (1) a suite number was not provided for the S. Eastern Avenue address and, as such, the Court had reservations regarding the sufficiency of Plaintiff's substitute service; and (2) The California Secretary of State's website provided Defendant's address was 6766 Passons Blvd., Suite C, Pico Rivera California 90660 - an address which was not served. (Doc. 14.). The Court ordered Plaintiff to serve the complaint and summons on both complete addresses for Defendant no later than September 30, 2011.
Notably, Plaintiff did not file its amended motion for default until October 3, 2011. (Doc. 16.)
DISCUSSION
Plaintiff has failed to comply with the Court's September 13, 2011 order. The Court required plaintiff to reserve the summons and complaint at the two identified addresses, and to include the suite number for the Commerce address. The proof of service attached to the instant motion for default provides complete addresses for the above-referenced locations, however, the proof of service merely states the motion for default was served at these addresses; not the summons and complaint. (Doc. 16.) Plaintiff has not filed a declaration of service regarding service of the summons and complaint subsequent to the Court's September 13, 2011 Order. If plaintiff has re-served the summons and complaint at the addresses, Plaintiff failed to file a proof of service.
CONCLUSION
Plaintiff's motion for default judgment is DENIED without prejudice. Plaintiff may re-file the motion for default after providing the Court with proof of service of the summons and complaint on Defendant in a manner that complies with this Order as well as the Court's September 13, 2011 Order. Plaintiff shall file and properly serve any amended motion, to be noticed and heard before the undersigned, no later than February 17, 2012.
IT IS SO ORDERED.
Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE