Free Motion to Set Aside Default - District Court of California - California

Case 5:07-cv-04886-HRL

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Filed 02/22/2008

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JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney JOANN M. SWANSON (CSBN 88143) Chief, Civil Division MELANIE L. PROCTOR (CSBN 228971) [email protected] Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6730 FAX: (415) 436-7169 Attorneys for Defendants1 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 KAIWEN CAI, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants enter their appearance for the sole purpose of this motion, and reserve the right to assert all appropriate defenses in their responsive pleading. Defendants do not waive proper service. to Fed. R. Civ. P. 25(d)(1), Michael B. Mukasey is substituted for his predecessor, Alberto Gonzales, as the United States Attorney General.
MOTION TO VACATE DEFAULT 07-4886 HRL *Pursuant
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) ) Plaintiff, ) ) v. ) ) MICHAEL B. MUKASEY,* Attorney ) General; MICHAEL CHERTOFF, ) Secretary, Department of Homeland ) Security; EMILIO GONZALEZ, Director, ) United States Citizenship and Immigration ) Services; CHRISTINA POULOS, Director, ) USCIS California Service Center, ) ) Defendants. ) )

No. C 07-4886 HRL

DEFENDANTS' MOTION TO VACATE ENTRY OF DEFAULT Date: Time: April 1, 2008 10:00 a.m.

Defendants hereby submit this motion to vacate the clerk's entry of default pursuant to Federal Rule of Civil Procedure 55(c). The motion is supported by the Declaration of Melanie L. Proctor. The motion is premised on the following facts: 1. Plaintiff Kaiwen Cai commenced this proceeding on September 21, 2007. Electronic

Case 5:07-cv-04886-HRL

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Docket, entry 1, September 21, 2007. 2. The Court issued its summons on October 11, 2007. Id., unnumbered, dated

October 11, 2007. 3. Plaintiff failed to serve the summons properly. On November 14, 2007, he returned

copies of the summons to the Court, indicating that only Emilio T. Gonzalez, Michael Chertoff, and Paul D. Clement had been served, via "certified priority mail." Electronic Docket, entries 3, 4, 5, dated November 14, 2007. 4. The summons for Emilio T. Gonzalez included Christina Poulos, notwithstanding the

fact that she is the Director of the California Service Center, located in Laguna Niguel, California, and not in Washington, D.C. Electronic Docket, entry 3, dated November 14, 2007. 5. On January 24, 2008, Plaintiff filed a Request for Entry of Default, asking the Court

to enter Defendants' default for failure to answer. Electronic Docket, entry 8, January 24, 2008. 6. On January 31, 2008, the Clerk of the Court entered Defendants' default. Electronic

Docket, Entry 9, January 31, 2008. 7. Fed. R. Civ. P. 4(i) states that service upon the United States and its agencies is

effected by either delivering a copy of the summons and the complaint to the United States Attorney for the district in which the action is brought, or by sending a copy of the summons and of the complaint by registered or certified mail addressed to the civil process clerk at the office of the United States Attorney. A copy of the summons and complaint must also be sent by registered or certified mail to the United States Attorney General, and by the same means to any named agencies and their officers. 8. office. 9. On February 14, 2008, Plaintiff mailed a copy of the summons and complaint to the On February 12, 2008, the Court directed Plaintiff to serve the local U.S. Attorney's

U.S. Attorney's office via Priority Mail. See Declaration of Melanie Proctor. The United States believes good cause exists to vacate the entry of default under FRCP 55(c) because to date, Plaintiff has failed to properly serve Defendants. Priority mail is neither certified

nor registered. Moreover, entry of default against the United States would not have a substantive
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effect on the litigation in this case given FRCP 55(e), which provides that a default cannot be taken against the United States unless the "claimant establishes a claim or right to relief by evidence satisfactory to the court." Thus, Plaintiff will be required to prove the elements of his case whether or not the United States answers, and the United States will be entitled to rebut that case. For the foregoing reasons, Defendants respectfully request the entry of default be vacated. Dated: February 22, 2008 Respectfully submitted, JOSEPH P. RUSSONIELLO United States Attorney

/S/ MELANIE L. PROCTOR Assistant United States Attorney Attorneys for Defendants

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