Szanto v. Bank of New York

• Court: District Court, S.D. California
• Decided: February 21, 2023
• Docket: 3:22-cv-01857
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PETER SZANTO, Case No.: 22-CV-1857 TWR (DEB)

12 Plaintiff, ORDER (1) SETTING ASIDE 13 v. CLERK’S ENTRY OF DEFAULT, (2) DENYING PLAINTIFF’S 14 BANK OF NEW YORK, REQUEST FOR DEFAULT aka Bank of New York Mellon Trust, 15 JUDGMENT, AND (3) EXTENDING aka BNY Mellon, PLAINTIFF’S DEADLINE TO 16 Defendant. EFFECT SERVICE OF PROCESS 17 (ECF No. 13) 18

19 20 Presently before the Court is Plaintiff Peter Szanto’s Request for (a) Entry of Court 21 Default Judgment and (b) Order to San Diego County Recorder (“Mot.,” ECF No. 13), in 22 response to which the Clerk of the Court entered default on February 16, 2023. (See 23 generally ECF No. 14.) Because of the procedural posture of this action, the Motion is 24 unopposed. 25 Federal Rule of Civil Procedure 55 sets forth a two-step process for obtaining a 26 default judgment. See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). “First, a party 27 must obtain a clerk’s entry of default under Rule 55(a),” and second, “the party may seek 28 / / / 1 entry of default judgment under Rule 55(b).” Doe v. Jeffries, No. 18CV2021-MMA 2 (JMA), 2018 WL 6582832, at *1 (S.D. Cal. Oct. 17, 2018) (citing Symantec Corp. v. Glob. 3 Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009)). A court must consider seven factors in 4 determining whether to grant default judgment: 5 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s 6 substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action[,] (5) the possibility of a dispute concerning material 7 facts[,] (6) whether the default was due to excusable neglect, and (7) the strong 8 policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 9

10 Eitel, 782 F.2d at 1471–72. “The general rule of law is that upon default the factual 11 allegations of the complaint, except those relating to the amount of damages, will be taken 12 as true.” TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987). 13 Through the instant Motion, Plaintiff seeks default judgment in the amount of 14 $51,402 (representing lost rental income of $3,000 per month from November 2021, until 15 February 2023, and the $402 filing fee for opening this action) and an order striking from 16 the San Diego County Recorder’s records the May 15, 2020 Assignment of Trust Deed, 17 (see ECF No. 13 at 62); November 15, 2022 Notice of Trustee’s Sale, (see ECF No. 13 at 18 7); and November 9, 2021 Notice of Default, (see ECF No. 13 at 9). (See generally Mot. 19 at 3–4.) A prerequisite for default judgment, however, is proper service of the summons 20 and complaint on the defendant. See e.g., Chambers v. Knight, No. 18-CV-02906-BAS- 21 BGS, 2019 WL 1923936, at *2 (S.D. Cal. Apr. 30, 2019) (“A default may not enter against 22 a defendant unless the plaintiff has properly served the defendant.”) (collecting cases). 23 Here, Plaintiff indicates that service was made on “BANK OF NEW YORK AKA BANK 24 OF NEW YORK MELLON TRUST AKA BNY MELLON” through “PAUL GILLIAM” 25

26 1 Here, Plaintiff collapsed the two inquiries into a single motion. 27

28 2 Pin citations to ECF No. 13 refer to the CM/ECF page numbers electronically stamped in the top, 1 at 240 Greenwich Street, New York, NY 10286, on November 29, 2022, at 3:00 p.m. (See 2 ECF No. 6.) Defendant’s filings with the California Secretary of State, however, indicate 3 that its registered agent for service of process at all relevant times was “CT 4 CORPORATION SYSTEM.” See Statement of Information – Corporation, No. 5 BA20220208506 (filed May 12, 2022), available at https://bizfileonline.sos.ca.gov/api/ 6 report/GetImageByNum/055193204220189255248203015202126017051030130232; see 7 also, e.g., Brooks v. House of CB USA, LLC, No. 2:20-cv-1606-JAM-JDP, 2021 U.S. Dist. 8 LEXIS 125705, at *2 n.1 (E.D. Cal. July 2, 2021) (taking judicial notice of a defendant’s 9 entity profile from the California Secretary of State’s website pursuant to Federal Rule of 10 Evidence 201 in ruling on a motion for entry of default judgment (citing Gerritsen v. 11 Warner Bros. Entm’t, Inc., 112 F. Supp. 3d 1011, 1033–34 (C.D. Cal. 2015))). 12 Because Plaintiff has failed properly to serve Defendant, the Court necessarily 13 DENIES Plaintiff’s Motion (ECF No. 13) and SETS ASIDE the Clerk’s Entry of Default 14 (ECF No. 14). See, e.g., Brooks, 2021 U.S. Dist. LEXIS 125705, at *3 (setting aside the 15 clerk’s entry of default and denying without prejudice the plaintiff’s motion for default 16 judgment where the plaintiff failed to show that he had properly served the defendant). 17 The Court further notes that Plaintiff’s ninety-day service deadline expires on February 27, 18 2023. See Fed. R. Civ. P. 4(m). The Court may, however, extend this deadline for good 19 cause. See Fed. R. Civ. P. 6(b)(1)(A). Here, Plaintiff diligently attempted to effect service 20 on November 29, 2022, (see ECF No. 6), the day after he filed his Complaint. (See ECF 21 No. 1.) Plaintiff then promptly moved for entry of default. (See ECF No. 13.) Good cause 22 appearing, the Court therefore EXTENDS Plaintiff’s deadline to effect service of process 23 on Defendant by thirty days to March 29, 2023. Should Plaintiff fail timely to effect service 24 of process on Defendant, the Court may dismiss without prejudice this action pursuant to 25 / / / 26 / / / 27 / / / 28 / / / 1 || Federal Rule of Civil Procedure 41(a)(2) and Civil Local Rules 4.1(b), 41.1(b), and 2 (a). 3 IT IS SO ORDERED. 4 ||Dated: February 21, 2023 — 5 [ odd (a re 6 Honorable Todd W. Robinson United States District Judge 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28