Love v. Truong
- Charles Breyer
- 3:19-cv-03240
- U.S. District Court · Northern District of California
- 2
In Love v. Truong, Magistrate Judge ACWELINE SCOTT CORLE ordered Samuel Love to explain whether Huong Q. Truong was properly served before default judgment.
Samuel Love must respond in writing about the validity of service before his motion for default judgment can be decided; Huong Q. Truong’s service remains under review.
What happened
In Love v. Truong, Samuel Love asked the court to enter default judgment against Huong Q. Truong. The court reviewed whether Truong received proper notice of the lawsuit because proper service is required before default judgment can be granted.
The court found a problem with the service papers. The process server left the summons and complaint with someone identified as “Tan (DOE)-Person in Charge,” but the papers did not include a declaration showing that Love made reasonable efforts to personally serve Truong first. The court ordered Love to explain in writing by March 16, 2020, why service was proper or what reasonable efforts he made. It also canceled the March 5 hearing on the default-judgment motion.
Magistrate Judge ACWELINE SCOTT CORLE issued an order to show cause; the court did not grant or deny the default-judgment motion in this order.
The detailed version
- Love v. Truong · No. 3:19-cv-03240
- Charles Breyer
- Mar. 2, 2020
Background
Samuel Love moved for default judgment against Huong Q. Truong. Before deciding that motion, the court had to determine whether Truong was properly served with notice of the lawsuit.
The proof of service stated that, on June 20, 2019, the process server left copies of the summons and complaint with “Tan (DOE)-Person in Charge.” This was substituted service, meaning service on someone other than the defendant under circumstances permitted by law. The proof of service did not include a declaration of diligence, and the box stating that such a declaration was attached was not checked.
Legal standard
Federal Rule of Civil Procedure 4(e) permits service on an individual by personal delivery, by leaving the papers at the person’s dwelling or usual residence with a suitable resident, or by delivering them to an authorized agent. It also permits service under the law of the state where the federal court is located. Under California law, if personal delivery cannot be made with reasonable diligence, service may be made by leaving the papers at the individual’s usual place of business with someone apparently in charge.
The court cited the general rule that two or three attempts at personal service at a proper place ordinarily satisfy reasonable diligence before substituted service is used.
Court’s action
The court stated that Love had not shown that he exercised reasonable diligence in trying to personally serve Truong before using substituted service. The court therefore ordered Love to show cause—that is, to explain—why service was proper or how he otherwise satisfied the service requirements. Love had to respond in writing by March 16, 2020.
The court vacated the hearing on the default-judgment motion that had been scheduled for March 5, 2020. This order did not grant or deny the motion for default judgment.
Judge
The opinion is signed by ACWELINE SCOTT CORLE, United States Magistrate Judge.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.