Page 1

1

3

James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com

4

Plaintiff in pro per

2

5 6 7 8 9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN JOSE DIVISION

12 13

James Alan Bush,

Case No. 08-cv-01354 PJH

14

Plaintiff,

15

v.

NOTICE OF MOTION TO COMPEL CLERK TO PERFORM DUTY

16

Sunnyvale Department of Public Safety, et al.,

17 18

Defendants.

Hearing Date: Hearing Time: Courtroom: Judge:

January 20th, 2011 1:30 P.M. 8 Lucy H. Koh

NOTICE OF MOTION TO COMPEL CLERK TO PERFORM DUTY

19 20

TO THE DEFENDANTS AND THEIR RESPECTIVE ATTORNEYS-OF-RECORD:

21

PLEASE TAKE NOTICE that on [date], 2012, at 1:30 P.M., in Courtroom 8

22

of the above-stated court, located at 280 South First Street, in San

23

Jose, Plaintiff, James Alan Bush, will, and hereby does, move for an

24

order directing that of Clerk, Albert J. Younger, enter default against

25

Defendant, Long Thang Cao, pursuant to his duty as mandated by Rule 55(a)

26

of the Federal Rules of Civil Procedure.

27

This motion will be made on the grounds that... NOTICE

PAGE 1 OF 1

08-cv-01354 (PR) JF


1

Dated: December 5th, 2011

2

By: X

3

James Alan Bush Plaintiff in pro per

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 NOTICE

PAGE 2 OF 1

08-cv-01354 (PR) JF


1

3

James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com

4

Plaintiff in pro per

2

5 6 7 8 9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN JOSE DIVISION

12 13

James Alan Bush,

Case No. 08-cv-01354 PJH

14

Plaintiff,

MOTION TO COMPEL CLERK TO PERFORM DUTY

15

v.

[Fed. R. Civ. P., 7(b), 55(a), 78(a)]

16

Sunnyvale Department of Public Safety, et al.,

17 18

Defendants.

RELIEF SOUGHT

19 20

Judge Lucy H. Koh

Plaintiff, James Alan Bush, brings this motion for an order compelling

21

the Clerk, Albert J. Younger (hereinafter “clerk”), to perform his duty

22

as mandated by Rule 55(a) of the Federal Rules of Civil Procedure. The

23

specific action sought to be compelled is the entry of default by the clerk

24

against Defendant, Long Thang Cao, pursuant to Rule 55(a) of the Federal

25

Rules of Civil Procedure. GROUNDS FOR RELIEF

26 27

As is more fully shown in the supporting memoranda and affidavit of MOTION

PAGE 1 OF 4

08-cv-01354 (PR) JF


1

plaintiff, good cause exists for such an order because:

2

1. Plaintiff performed all conditions precedent to the filing of the

3

request for entry of default, in that he served the defendant by a

4

Rule 4(d) notice and request for waiver of service via first-class

5

mail, as is authorized by Rule 4(d)(1)(G), and filed with this court the

6

executed waiver returned by the defendant [see Exhibit “A”]; also, per

7

Code of Civil Procedure §§ 415.30(a),(c), the plaintiff also sent to

8

the defendant a copy of the summons and complaint, an acknowledgement

9

of receipt and a return envelope, postage-prepaid, and a notice that

10

conforms to the exact wording set out in Code of Civil Procedure

11

§ 415.30(b), thereby constituting formal service of process under

12

Rules 4(e)(1) and (h)(1), which expressely authorizes service according

13

to any method authorized by state law in the judicial district in which

14

service is to be accomplished.

15

2. At the time the plaintiff submitted the request for entry of default,

16

the aforementioned defendant was in default, in that the defendant

17

executed the waiver and returned it within the 30 days allotted, and

18

failed to file a responsive pleading or otherwise defend against the

19

complaint within the requisite 60 days.

20

3. Upon filing the request for entry of default by clerk, the plaintiff

21

attached the executed waiver returned by the defendant, and included

22

a declaration by the plaintiff, stating that the defendant had not

23

answered or otherwise appeared in this action, as required per

24

Rule 7(a), and that the time within which the defendant may appear had

25

expired [see Exhibit “B”].

26

4. In spite of his clear, present and otherwise ministerial duty to enter

27

the default of the defendant by reason of Rule 55(a) of the Federal MOTION

PAGE 2 OF 4

08-cv-01354 (PR) JF


1

Rules of Civil Procedure, the clerk has failed and/or refused to

2

carry out this duty to enter default as requested by the plaintiff by

3

denying the request without sufficient or plausible explanation [see

4

Exhibit “C”].

5

5. Plaintiff has attempted to obtain the reason for the denial from the

6

clerk prior to bringing this motion, as shown by the plaintiff’s letter

7

to the clerk [see Exhibit “D”], and has also attempted to obtain remedy

8

by letter to the presiding judge in this case, namely, the Honorable

9

Lucy H. Koh [see Exhibit “E”], to no avail.

10

6. It would be an injustice to deny the plaintiff’s request for entry

11

of default by clerk because the plaintiff has a clear, present, and

12

substantial right to the performance of the clerk’s duty, in that, as

13

a clerk of the United States District Court for the Northern District

14

of California, San Jose Division, the clerk is specially enjoined

15

by law, under the circumstances aforedescribed, to enter default as

16

prescribed by Rule 55(a) of the Federal Rules of Civil Procedure.

17

Furthermore, if default is entered, the defendant cannot challenge

18

the facts alleged in the complaint, and those facts can (and will) be

19

used to secure judgment against the remaining defendants; moreover,

20

an entry of default will allow the case to proceed to judgment against

21

the defendant, and a determination of damages can be made, without the

22

participation of the defendant.

23

7. There is no adequate remedy at law available to the plaintiff to avail

24

himself of this injustice, but by this motion to compel the clerk to

25

perform his duty to enter default against the defendant.

26 27

8. Defendant will not be prejudiced by the granting of this relief because the plaintiff has moved promptly for the aforedescribed order, and has MOTION

PAGE 3 OF 4

08-cv-01354 (PR) JF


1

otherwise acted with due diligence in seeking to resolve the wrongful

2

denial of the request for entry of default, in that this motion

3

followed as soon as all other avenues of recourse were exhausted. In

4

addition, the denial has afforded the defendant additional time to

5

respond to the complaint or, at the very least, a reasonable belief

6

that additional time existed, and yet the defendant has wasted this

7

time, failing to even attempt to research and investigate the claims

8

made therein, or to draft an answer or motion to dismiss in time to

9

be filed within the time that was, or that the defendant thought was,

10

available. SUPPORTING PAPERS

11 12

This motion is based on this document, the Notice of Motion, the

13

accompanying declarations and memoranda, and the proposed order attached

14

to this motion, and on all of the pleadings and papers on file in this

15

action, and on whatever evidence and argument is presented at the hearing

16

on this motion.

17

Dated: January 13th, 2012

18

By: X

19

James Alan Bush Plaintiff in pro per

20 21

//

22

//

23

//

24

//

25

//

26

//

27

// MOTION

PAGE 4 OF 4

08-cv-01354 (PR) JF

DRAFT - Motion to Compel Clerk to Perform Duty  

A draft of my attempt to fix the default clerk's error in denying my request for entry of default by clerk against Defendant Long Thang Cao;...

Read more
Read more
Similar to
Popular now
Just for you