Poorsina v. Tseng

Opinion

3 UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6

7 ALI R. POORSINA, Case No: 20-cv-09122 SBA 8 Plaintiff, ORDER DENYING MOTIONS FOR 9 DEFAULT JUDGMENT vs. 10 TAN TSENG, et al., 11 Defendants. 12 13 Plaintiff Ali R. Poorsina (“Plaintiff”), proceeding pro se, brings the instant action 14 against Defendants Tan Tseng (“Tseng”), Terrenz Kukant Cam (“T.K. Cam”), Boi Anh 15 Hong (“Hong”), and Kevin Tu Cam (“K.T. Cam”) (collectively, “Defendants”). 16 The procedural background is set forth in detail in the Order: (1) Granting Motion to 17 Set Aside the Entry of Default; (2) Denying Motion for Default Judgment; and (3) Denying 18 Motion to Consolidate Cases, which issued January 12, 2022 (“Order”). Dkt. 68. As is 19 pertinent here, the Order set aside the entry of default against Tseng, T.K. Cam, and Hong 20 based on ineffective service; default had not been entered against K.T. Cam. Given the 21 lack of effective service, the Order also denied Plaintiff’s motion for default judgment 22 against Defendants. The Order directed Plaintiff to complete service on Defendants within 23 30 days, noting that Defendants had authorized counsel to accept service on their behalf. 24 Thereafter, Plaintiff filed a “Motion Granting Plaintiff for Default Judgment and 25 Denying Defendants’ Motion to Strike and Set Aside the Clerk’s Entry of Default,” which 26 he entered as a “First Motion for Default Judgment by the Court.” Dkt. 69. Though 27 convoluted, the motion seeks reconsideration of the Order on the ground that Plaintiff 1 January 14, 2022. Plaintiff later filed another document titled “Order Re Plaintiff’s Motion 2 for Default Judgment,” which he entered as a “Second Motion for Default Judgment by the 3 Court.” Dkt. 75. The “second motion” does not read as a motion (or comply with the civil 4 local rules governing motion practice), but rather, as an order entering default judgment 5 based on the service effectuated on January 14; it thus appears to be a proposed order 6 granting Plaintiff’s prior motion for default judgment in light of the recent service.1 7 To the extent Plaintiff moves for reconsideration of the Order denying default 8 judgment based on service completed after the Order issued, the motion fails. A district 9 court may grant a motion for reconsideration under Federal Rule of Civil Procedure 59(e) 10 if, inter alia, it is presented with newly discovered evidence. Kaufmann v. Kijakazi, 32 11 F.4th 843, 2022 WL 1233238, at *6 (9th Cir. 2022). “For evidence to be considered ‘new’ 12 for the purposes of Rules 59(e)/60(b), it must be of such a character that it would change 13 the outcome of the court’s prior decision.” Pirtle v. Cal. Bd. of Prison Terms, No. CIV. S- 14 04-518 FCD KJ, 2007 WL 2153094, at *1 (E.D. Cal. July 24, 2007). When the Order 15 issued, Plaintiff had not properly served Defendants and default judgment was properly 16 denied on that basis. Subsequent service—in compliance with the directive of the Order— 17 cannot change the outcome (or propriety) of that decision. 18 To the extent Plaintiff moves for default judgment anew, the motion likewise fails. 19 As noted in the Order, default judgment is a two-step process; a default judgment cannot be 20 granted unless the plaintiff has sought and obtained the entry of default by the Clerk. Fed. 21 R. Civ. P. 55(b)(2); Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). Here, the entry 22 of default has not been entered against Defendants. Moreover, default may be entered only 23 when a defendant fails to plead or otherwise defend. Fed. R. Civ. P. 55(a); Benny v. Pipes, 24 799 F.2d 489, 492 (9th Cir. 1986) (“A failure to make a timely answer to a properly served 25 complaint will justify entry of a default judgment.”), amended, 807 F.2d 1514 (9th Cir. 26

27 1 Pursuant to Civil Local Rule 5-1(f), proposed orders should be filed in PDF format and attached to the applicable motion or other document. Additionally, proposed orders 1987). Even assuming the service on January 14 was effective, Defendants’ response was 2\| not yet due on January 24, when Plaintiff filed the instant motion. Indeed, since that time, 3|| K.T. Cam has appeared, and Defendants have filed a motion to dismiss. Dkt. 78. Default therefore cannot be entered against Defendants at this time. Franchise Holding II, LLC, v. Huntington Restaurants Grp., Inc., 375 F.3d 992, 927 (9th Cir. 2004) (where a party has 6|| appeared, a default entered by the clerk is “void ab initio’). 7 For the reasons stated above, IT IS HEREBY ORDERED THAT Plaintiffs motions 8|| for reconsideration of the Order denying default judgment and/or for default judgment 9|| anew are denied. This order terminates Docket Nos. 69 and 75. 10 IT IS SO ORDERED. Dated: 5/18/2022 Pantie onsing Richard Seeborg for Saundra B. strong United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _3-