United States District Court, D. Kansas
RONALD E. DAVIS, Plaintiff,
STATE OF CALIFORNIA, et al., Defendants.
MEMORANDUM AND ORDER
A. ROBINSON UNITED STATES DISTRICT JUDGE
Ronald E. Davis, proceeding pro se, brings this action
against Defendants the State of California, California
Franchise Tax Board, and California State Agency Insurer,
seeking to recover for alleged violations of his privacy and
constitutional rights, as well as negligence. This matter
comes before the Court on Plaintiff's Motions to
Reconsider (Docs. 17, 18) this Court's orders denying his
application for entry of default and default judgment under
Fed.R.Civ.P. 55,  and Motion for Leave of Court to Correct
(Doc. 14). As described more fully below, Plaintiff's
motions to reconsider are denied. Plaintiff's motion for
leave to correct proof of service is moot.
Motions to Reconsider
Court denied Plaintiff's motion for entry of default
against Defendants under Fed.R.Civ.P. 55(a), which provides
that “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise,
the clerk must enter the party's default.” The
Court determined that Plaintiff had failed to submit
sufficient proof of service and therefore denied his
motion. Plaintiff asks this Court to reconsider
its denial of his motion for default, arguing that he
complied with California law in serving process in this case,
and that the State in fact received process as evidenced by a
letter he received from its counsel advising him that it was
not properly served under the Federal Rules.
may seek reconsideration of a non-dispositive order on the
following grounds: (1) an intervening change in controlling
law; (2) the availability of new evidence; or (3) the need to
correct clear error or prevent manifest
injustice. Plaintiff has failed to establish any of
these grounds in his motion for reconsideration. As the Court
explained in its order denying default, Plaintiff failed to
provide sufficient proof that Defendant had been properly
served. He submitted neither (1) the affidavit of proof of
service contained in the summons this Court issues; nor (2)
an acknowledgement of receipt of summons that complies with
California law for service of process.
urges that he complied with a California statute in serving
process on Defendants, citing Cal. Civ. Proc. Code §
416.50. That provision applies to public entities and states:
“(a) A summons may be served on a public entity by
delivering a copy of the summons and of the complaint to the
clerk, secretary, president, presiding officer, or other head
of its governing body.” The problem with
Plaintiff's proof of service however, was not whether or
not he complied with this California provision. As the Court
explained in its order, he failed to submit an affidavit of
service. Instead, Plaintiff submitted three separate
documents, which each appear to be United States Postal
Service certified mail receipts indicating that Plaintiff
mailed items to three different California addresses, and
that recipients at each address signed for the
items. These documents, however, are not
affidavits of proof of service, are not affirmed under
penalty of perjury, do not mention a summons or
Plaintiff's Complaint being sent,  and do not name
the individuals or the titles of the individuals who received
service. As the Court explained, this was insufficient.
Plaintiff has not submitted documentation with his motions to
reconsider that would cure this deficiency.
suggests that a letter he received from Defendants'
counsel acknowledging receipt of the Complaint and summons is
sufficient proof of service. But actual notice is
insufficient, standing alone, as a substitute for proper
service, particularly where a plaintiff seeks default
judgment. The Court declines to find sufficient
process based on the April 7 letter from Defendants'
counsel attached to Plaintiffs' motions. Plaintiff's
motions to reconsider are thus denied.
Motions for Leave to Correct
this Court's orders denying default, and before he sought
reconsideration, Plaintiff filed his motion for leave to
correct his proof of service in accordance with this
Court's guidance in its order denying entry of default.
The Court finds this request moot because in its order
denying entry of default, the Court already granted Plaintiff
leave to amend his proof of service to comply with
THEREFORE ORDERED BY THE COURT that Plaintiff's Motions
to Reconsider (Docs. 17, 18) are denied.
FURTHER ORDERED that Plaintiff's Motion for Leave of
Court to Correct (Doc. 14) is moot.