1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 OSCAR RENE ORELLANA IZAGUIRRE, Case No. 23-cv-00316-SVK

5 Plaintiff,

ORDER DENYING WITHOUT

6 v. PREJUDICE MOTION FOR DEFAULT

JUDGMENT

7 PROSPER BUILDERS, INC., et al., Re: Dkt. No. 26 8 Defendants.

9 On January 23, 2023, Plaintiff Oscar Rene Orellana Izaguirre filed a complaint against a 10 Defendants Prosper Builders, Inc., Quoc K. Truong, and Thai Truong, alleging that Defendants 11 violated various wage and hour laws. Dkt. 1. The Clerk of Court issued a summons on 12 January 24, 2023, but the summons was returned unexecuted as to each of the three Defendants on 13 February 28, 2023. Dkt. 5, 8, 9, 10. 14 On April 5, 2023, Plaintiff filed a motion for extension of time to serve Defendant Prosper 15 Builders. Dkt. 14. The motion indicated that the individual Defendants, Quoc K. Truong and 16 Thai Truong, had been served on March 22, 2023. Id. ¶ 2; Dkt. 14-1; see also Dkt. 16, 17. 17 On April 13, 2023, the Court granted Plaintiff’s motion for an extension of time to 18 effectuate service of process on Defendant Prosper Builders and Plaintiff’s motion to serve that 19 company through the California Secretary of State. Dkt. 18, 19. Plaintiff subsequently filed a 20 proof of service indicating that Prosper Builders had been served through the California Secretary 21 of State on April 19, 2023. Dkt. 22. 22 None of the Defendants filed a response to the Complaint by the applicable deadlines. On 23 June 19, 2023, Plaintiff requested entry of default against all Defendants, and the Clerk of Court 24 entered default against all Defendants on June 21, 2023. Dkt. 23, 24. The Court subsequently set 25 a deadline of August 4, 2023 for Plaintiff to file a motion for default judgment. Dkt. 25. 26 Now before the Court is Plaintiff’s timely-filed motion for default judgment against all 27 Defendants. Dkt. 26. No opposition to the motion for default judgment was filed by the 1 applicable deadline. For the reasons discussed below, Plaintiff’s motion for default judgment is 2 DENIED without prejudice to Plaintiff’s ability to file a renewed motion for default judgment 3 based on a more complete legal and evidentiary showing. 4 I. LEGAL STANDARD 5 After entry of default, a court may, in its discretion, enter default judgment. See Fed. R. 6 Civ. P. 55; Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Before entering default 7 judgment, the Court must assess the adequacy of the service of process on the party against whom 8 default is requested. See Trustees of ILWU-PMA Pension Plan v. Coates, No. C-11-3998 EMC, 9 2013 WL 556800, at *4 (N.D. Cal. Feb. 12, 2013). The Court must also determine whether it has 10 subject matter jurisdiction over the action and personal jurisdiction over the defaulted defendant. 11 Id. at *3-4. 12 If these requirements are met, “[t]he district court’s decision whether to enter default 13 judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In 14 making its determination a court should consider: “(1) the possibility of prejudice to the plaintiff; 15 (2) the merits of plaintiff’s substantive claim; (3) the sufficiency of the complaint; (4) the sum of 16 money at stake in the action; (5) the possibility of dispute concerning material facts; (6) whether 17 default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of 18 Civil Procedure favoring decisions on the merits.” Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th 19 Cir. 1986). Upon default, “the factual allegations of the complaint, except those relating to the 20 amount of damages, will be taken as true.” TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917– 21 18 (9th Cir. 1987) 22 II. DISCUSSION 23 A. Service and Jurisdiction 24 As discussed above, “[i]n deciding whether to grant or deny default judgment, the Court 25 must first assess the adequacy of the service of process on the party against whom default is 26 requested because, if service were improper, that may well explain the failure of a defendant to 27 appear in a lawsuit.” Folkmanis, Inc. v. Uptown Toys LLC, No. 18-cv-00955-EMC, 2018 WL 1 Plaintiff’s motion for default judgment states that Defendant Prosper Builders was served 2 through the California Secretary of State, as authorized by the Court. Dkt. 26 ¶ 2. The motion 3 also states that Defendants Thai Truong and Quoc K. Truong were served via substitute service. 4 Id. ¶¶ 3-4. Rule 4(e) of the Federal Rules of Civil Procedure sets forth several methods of 5 service. An individual defendant may be served by: (1) delivering a copy of the summons and 6 complaint to the individual personally; (2) leaving a copy of the summons and complaint at the 7 individual's dwelling or usual place of abode with someone of suitable age and discretion who 8 resides there; or (3) delivering a copy of the summons and complaint to an agent authorized by 9 appointment or by law to receive service of process. Fed. R. Civ. P. 4(e)(2). Alternatively, an 10 individual defendant may be served with process pursuant to the law of the state where the district 11 court is located. Fed. R. Civ. P. 4(e)(1). Under California law, individual defendants may be 12 served by several means, including personal delivery of the summons and complaint to the 13 individual or the individual's authorized agent. Cal. Code Civ. Proc. §§ 415.10, 416.90. 14 Under California law, substitute service is permitted only “[i]f a copy of the summons and 15 complaint cannot with reasonable diligence be personally delivered to the person to be 16 served . . . “ Cal. Code Civ. Proc. § 415.20(b). By contrast, Federal Rule of Civil Procedure 17 4(e)(2)(B), which permits substitute service, “does not contain a reasonable diligence 18 requirement.” Trustlabs, Inc. v. An, No. 21-cv-2505-CRB, 2021 WL 312595, at *2 n.2 (July 23, 19 2021). 20 The proofs of service filed by Plaintiff state that the individual Defendants were served by 21 substitute service and by mail. Dkt.16, 17. The proofs of service do not include a showing of 22 reasonable diligence. Id. The Court cannot conclude on the present record that service was proper 23 because Plaintiff does not specify which law(s) authorized service in the manner made. 24 Moreover, the proofs of service state that copies of the summons and complaint were left 25 with or in the presence of “Thuy Truong,” who is identified as “sister/occupant,” and also mailed 26 to the following address: 8206 Split Rail Way, Sacramento, CA 95829. Id. Elsewhere in the 27 record, Plaintiff identifies this as the home address of the individual Defendants, who are 1 Eastern District of California, whereas the Complaint in this action states that venue in the 2 || Northern District is proper because Defendants reside in this District. Dkt. 1 ]6.! 3 In any renewed motion for default judgment, Plaintiff must address these deficiencies and 4 || inconsistencies by providing additional evidence establishing that the individual Defendants were 5 served at the correct address by an authorized method of service. Moreover, any renewed motion 6 || must establish that the Court has personal jurisdiction over the Defendants and that venue in this 7 District is proper. 8 B. __ Eitel Factors 9 Having discussed the threshold requirements of service and jurisdiction, the Court must 10 || next consider the Fite! factors set forth above in section I. Plaintiff has provided a calculation of 11 his claimed damages, which may be relevant to the fourth Eitel factor concerning the amount of 12 || money at stake, but has otherwise failed to specifically address the Eitel factors in his motion for 13 default judgment. See Dkt. 26. 14 || 11. CONCLUSION 15 For the foregoing reasons, the Court exercises its discretion to DENY Plaintiff's motion 16 || for default judgment because Plaintiff fails to establish that service on the individual Defendants 3 17 || was proper, fails to address the Court’s personal jurisdiction over Defendants, and fails to address 18 || all of the Zitel factors. This denial is without prejudice to Plaintiffs ability to file a renewed 19 motion for default judgment that addresses the deficiencies identified in this order by 20 September 11, 2023. 21 SO ORDERED. 22 Dated: August 10, 2023 23 Seesemn yar

SUSAN VAN KEULEN

United States Magistrate Judge 25 26 07 ' The original summons for each Defendant, all which were returned unexecuted, show an effort to serve each of the Defendants at an address on Bahama Way in San Jose, California, which is in 28 this District. Dkt. 8-10. Other portions of the record indicate that the San Jose address was, at least at one time, listed as the business address of Defendant Prosper Builders. Dkt. 12.