Berroteran v. Quirk and Tratos

• Court: District Court, D. Nevada
• Decided: September 27, 2022
• Docket: 2:21-cv-00396
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 ABELARDO BERROTERAN, Case No. 2:21-cv-00396-RFB-EJY 8 Plaintiff, ORDER 9 v. 10 QUIRK AND TRATOS et al., 11 12 Defendants.

13 Before the Court are two motions that seek the same relief: Plaintiff’s first motion for entry 14 of clerk’s default against Defendant Microsoft (ECF No. 21) and Plaintiff’s second motion for 15 entry of clerk’s default against Defendant Microsoft (ECF No. 22). For the reasons stated below, 16 these motions are denied. 17

18 I. Procedural History 19 Plaintiff commenced this pro se patent infringement case by applying to proceed in forma 20 pauperis (IFP) along with the case initiating documents on March 9, 2021. ECF No. 1. On March 21 11, 2021, The Court ordered Plaintiff to resubmit his improperly completed application and 22 granted him thirty days to do so. ECF No. 3. On September 13, 2021, Plaintiff moved for 23 appointment of counsel. ECF No. 10. On September 14, 2021, The Court denied Plaintiff’s 24 motion as premature. ECF No. 12. The Court also gave Plaintiff ninety days to “obtain 25 summonses and serve each Defendant with the Summons and Complaint in accordance with Fed. 26 R. Civ. P. 4.” Id. 27 On September 14, 2021, Plaintiff filed his Complaint raising patent infringement claims 28 1 against Defendants Quirk and Tratos, Western Global Communications, and Paul Anderson. ECF 2 No. 13. On January 3, 2021, Plaintiff filed his Amended Complaint with Jury Demand, and added 3 Microsoft as a Defendant. ECF No. 16. On January 10, 2022, Summons were issued as to 4 Defendant Microsoft. ECF No. 20. On February 14, 2022, Plaintiff filed his first Motion for Entry 5 of Clerk’s Default against Microsoft. ECF No. 21. On February 22, 2022, Plaintiff filed a second 6 Motion for Entry of Clerk’s Default against Microsoft. ECF No. 22. Plaintiff submitted an 7 affidavit in support of his motion, noting that he sent a copy of the summons and amended 8 complaint by certified mail addressed to “Asst. General Counsel Michael Allen, Attorney” in 9 Redmond, Washington. ECF No. 22. 10 11 II. Legal Standard 12 A. Default Judgment 13 The granting of a default judgment is a two-step process directed by Rule 55 of the Federal 14 Rules of Civil Procedure. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). The first step is 15 an entry of default, which must be made by the clerk following a showing, by affidavit or 16 otherwise, that the party against whom the judgment is sought “has failed to plead or otherwise 17 defend.” Fed. R. Civ. P. 55(a). 18 The second step is entry of a default judgment under Rule 55(b), a decision which lies 19 within the discretion of the court. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Factors 20 which a court, in its discretion, may consider in deciding whether to grant a default judgment 21 include: (1) the possibility of prejudice to the plaintiff, (2) the merits of the substantive claims, (3) 22 the sufficiency of the complaint, (4) the amount of money at stake, (5) the possibility of a dispute 23 of material fact, (6) whether the default was due to excusable neglect, and (7) the Federal Rules' 24 strong policy in favor of deciding cases on the merits. Eitel, 782 F.2d at 1471-72. If an entry of 25 default is made, the court accepts all well-pleaded factual allegations in the complaint as true; 26 however, conclusions of law and allegations of fact that are not well-pleaded will not be deemed 27 admitted by the defaulted party. DirecTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007). 28 B. Service 1 "Service of process" is the legal term describing a formal delivery of documents giving the 2 defendant notice of a pending lawsuit. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 3 694, (1988); Charles A. Wright & Arthur R. Miller, 4A Federal Practice & Procedure, § 1094 (4th 4 ed. 2015) (noting that the purpose of service is to give a defendant sufficient notice of the 5 proceedings). 6 Individuals may be served by: (1) following the laws governing service of process in the 7 state where the district court is located or where service is made; or (2) delivering a copy of the 8 summons and complaint to the individual personally, an authorized agent, or a person of suitable 9 age and discretion residing with the individual. See Fed. R. Civ. P. 4(e). 10 Federal Rule of Civil Procedure 4(h)(1) states that a corporation or association must be 11 served in the manner that individuals are served pursuant to Rule 4(e)(1) or by “delivering a copy 12 of the summons and of the complaint to an officer, a managing or general agent, or any other agent 13 authorized by appointment or by law to receive service of process . . . .” 14 Nevertheless, the Ninth Circuit has held that “the provisions of Rule 4 should be given a 15 liberal and flexible construction.” See United Food & Commercial Workers Union Local 197 v. 16 Alpha Beta Food Co., 736 F.2d 1371 (9th Cir. 1984). Additionally, Courts in this Circuit must be 17 more solicitous of the rights of pro se litigants, particularly when “technical jurisdictional 18 requirements are involved;” dismissal of a complaint on the grounds that service was improper is 19 frowned upon. Borzeka v. Heckler, 739 F.2d 444, 447 n. 2 (9th Cir. 1984). 20 21 III. Discussion 22 A. Motions for Entry of Clerk’s Default 23 The Court understands Plaintiff’s motions to seek the same relief: entry of Clerk’s default 24 as to Defendant Microsoft. Plaintiff requests that the Clerk of Court enter an order for default 25 judgment as Defendant Microsoft did not appear in the action 45 days after alleged service; indeed, 26 Microsoft did not appear until July 13, 2021, when its counsel entered their appearance. 27 A prerequisite to be able to “plead or otherwise defend” in a civil action is adequate service. 28 Plaintiff’s attempt to serve Microsoft by certified mail does not satisfy personal service, and even 1| if certified mail could suffice, there is no showing that the person or persons who signed the certified return receipts are people qualified under Rule 4 to accept service on behalf of this 3 | corporate Defendant. The Court finds that entry of clerk’s default is unavailable in this case because service was improper. Still, the Court will not dismiss the plaintiffs complaint at this 5 | juncture. Defendant Microsoft has appeared in this matter and does not seem currently prejudiced 6 | by delays in service; furthermore, deciding cases on the merits is strongly favored. The Court 7 | notes that Defendant Microsoft has already filed a Motion to Dismiss that the Court will consider 8 | in due course. ECF No. 25. 9 10 IV. Conclusion 11 For the reasons stated herein, IT IS SO ORDERED that Plaintiff's Motions for Entry of Clerk’s Default (ECF Nos. 21, 22) are DENIED. 13 14 DATED: September 27, 2022 15 □ > 16 RICHARD F. BOULWARE, II 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28

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