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

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

James Alan Bush, Plaintiff, v. Sunnyvale Department of Public Safety, et al., Defendants.

Case No. 08-cv-01354 LHK NOTICE OF AMENDED MOTION TO COMPEL CLERK TO PERFORM DUTY Hearing Date: Hearing Time: Courtroom: Judge: April 21st, 2012 1:30 P.M. 8 Lucy H. Koh

NOTICE OF MOTION TO COMPEL CLERK TO PERFORM DUTY TO THE HONORABLE LUCY H. KOH, DISTRICT JUDGE, UNITED STATES DISTRICT COURT: PLEASE TAKE NOTICE that on April 21st, 2012, at 1:30 P.M., in Courtroom 8 of the above-stated court, located at 280 South First Street, in San Jose, Plaintiff, James Alan Bush, will, and hereby does, move for an order directing that Albert J. Younger, Default Clerk, enter default against Defendant, Long Thang Cao. This motion will be made on the grounds that the request for entry of default was proper in all respects, in that: NOTICE PAGE 1 OF 2 08-cv-01354 LHK

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1. 2.

the defendant was in default at the time the application was made;; the application conformed to the requirements of Rule 55(a), and was accompanied by the requisite executed waiver of service of summons and acknowledgement of receipt of the summons and complaint returned by the defendant;

3.

the clerk had a ministerial duty under Rule 55(a) of the Federal Rules of Civil Procedure to enter default against the defendant under the circumstances, yet failed to do so without any explanation or sufficient reason;

4.

the plaintiff is beneficially interested in the entry of default by clerk, and has no plain, speedy, and adequate remedy in the ordinary course of law other than by this motion; and,

5.

there will be no prejudice to the defendant by granting such an order.

Dated: February 17th, 2012 By: X James Alan Bush Plaintiff in pro per // // // // // // // // // // // NOTICE PAGE 2 OF 2 08-cv-01354 LHK

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

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

James Alan Bush, Plaintiff, v. Sunnyvale Department of Public Safety, et al., Defendants.

Case No. 08-cv-01354 PJH AMENDED MOTION TO COMPEL CLERK TO PERFORM DUTY [Fed. R. Civ. P., 7(b), 55(a), 78(a)]

Judge Lucy H. Koh RELIEF SOUGHT

Plaintiff, James Alan Bush, brings this motion for an order compelling, Albert J. Younger, Default Clerk, to perform his duty as mandated by Rule 55(a) of the Federal Rules of Civil Procedure. The specific action sought to be compelled is the entry of default by clerk, namely, Albert J. Younger, Default Clerk, against Defendant, Long Thang Cao, pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. GROUNDS FOR RELIEF As is more fully shown in the supporting memoranda and declaration of MOTION PAGE 1 OF 4 08-cv-01354 LHK

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the plaintiff, good cause exists for such an order because: 1. Albert J. Younger (hereinafter clerk), is a clerk of this Court, having the duty to perform the act sought to be compelled by this motion pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. 2. Plaintiff, James Alan Bush (hereinafter plaintiff), has a clear and beneficial right to the performance of that act, and has no plain, speedy, or adequate remedy in the ordinary course of law other than by this motion. 3. Plaintiff performed all conditions precedent to the filing of the request for entry of default, in that he served the defendant by a Rule 4(d) notice and request for waiver of service via first-class mail, as authorized by Rule 4(d) (G), and filed with this Court an executed (1) waiver returned by the defendant [Exhibit A]; moreover, per Code Civ. Proc. 415.30(a) and (c), the plaintiff sent to the defendant a copy of the summons and complaint, an acknowledgement of receipt with a postage-prepaid return envelope, and a notice that conformed to the exact wording set out in Code Civ. Proc. 415.30(b), thereby constituting formal service of process under Rules 4(e) (1) and (h) (1), which expressely authorize service according to any method prescribed by state law in the judicial district in which service is to be accomplished. 4. At the time the plaintiff submitted the request for entry of default, the aforementioned defendant was in default, in that the defendant executed the waiver and returned it within the 20 days allotted by Rule [#], but failed to file a responsive pleading or otherwise defend against the complaint within the requisite 60 days per Rule 12(a) (A). (1) 5. Upon filing the request for entry of default by clerk [Exhibit B], the MOTION PAGE 2 OF 4 08-cv-01354 LHK

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 7.

plaintiff attached the executed waiver returned by the defendant, and included a declaration by the plaintiff, stating that the defendant had not answered or otherwise appeared in this action, as required per Rule 7(a), and that the time within which the defendant may appear had expired. 6. In spite of his clear, present and otherwise ministerial duty to enter the default of the defendant by reason of Rule 55(a), the clerk has failed and/or refused to carry out this duty to enter default as requested by the plaintiff by denying the request without sufficient or plausible explanation provided in the denial [Exhibit C]. When asked by the plaintiff for the reason for the denial, the clerk stated that the proof of service was invalid, even though Rule 4(d) (4) of the Federal Rules of Civil Procedure provides that the filing of an executed waiver supersedes the obligation to file proof of service with the clerk of the court. Plaintiff has attempted to obtain the reason for the denial from the clerk prior to bringing this motion, as shown by the plaintiffs letter to the clerk [Exhibit D], and has also attempted to obtain remedy by letter to the Court [Exhibit E]. 8. It would be an injustice to deny the plaintiffs request for entry of default by clerk because the plaintiff has a clear, present, and substantial right to the performance of the clerks duty, in that, as a clerk of the United States District Court for the Northern District of California, San Jose Division, the clerk is specially enjoined by law per Rule 55(a) of the Federal Rules of Civil Procedure to enter default. Also, the plaintiff has a beneficial interest in the performance of this duty in that, if default is entered against the MOTION PAGE 3 OF 4 08-cv-01354 LHK

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defendant, he cannot challenge the facts alleged in the complaint, and those facts can (and will) be used to secure judgment against the remaining defendants; moreover, an entry of default will allow the case to proceed to judgment against the defendant, and a determination of damages can be made, without the participation of the defendant. 9. There is no adequate remedy at law available to the plaintiff to avail himself of this injustice, other than by this motion. 10. Defendant will not be prejudiced by the granting of this relief because the plaintiff has moved promptly for the aforedescribed order, and has otherwise acted with due diligence in seeking to resolve the wrongful denial of the request for entry of default, in that this motion followed as soon as all other avenues of recourse were exhausted. In addition, the denial afforded the defendant additional time to respond to the complaint or, at the very least, a reasonable belief that additional time existed, and yet the defendant wasted this time, failing to even attempt to research and investigate the claims made therein, or to draft an answer or motion to dismiss in time to be filed within the time that was, or that the defendant thought was, available. SUPPORTING PAPERS This motion is based on this document, the Notice of Motion, the accompanying declaration and memoranda, and the proposed order attached to this motion, and on all of the pleadings and papers on file in this action, and on whatever evidence and argument is presented at the hearing on this motion. Dated: February 17th, 2012 By: X James Alan Bush Plaintiff in pro per 08-cv-01354 LHK

MOTION

PAGE 4 OF 4

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

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

James Alan Bush, Plaintiff, v. Sunnyvale Department of Public Safety, et al., Defendants.

Case No. 08-cv-01354 LHK DECLARATION OF PLAINTIFF IN SUPPORT OF AMENDED MOTION TO COMPEL CLERK TO PERFORM DUTY [Fed. R. Civ. P., 7(b), 55(a), 78(a)] Judge Lucy H. Koh

I, James Alan Bush, in support of the attached motion, declare the following: 1. I am the plaintiff in the above-captioned matter. I have personal knowledge of the facts stated in this declaration, and can testify competently to these facts if so called. 2. The attached motion seeks a court order compelling clerk, Albert J. Younger, to enter the default of Defendant, Long Thang Cao. The request made to the clerk conformed to the requirements per Rule 56 in all respects; yet, the clerk refused, and continues to refuse, to enter DECLARATION PAGE 1 OF 4 08-cv-01354 LHK

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 7.

default. 3. On or before October 8th, 2010, I sent by first-class mail a copy of the summons and copy of the complaint in this action to Defendant Cao, as well as a Code Civ. Proc. 415.30(b) notice of lawsuit and Rule 4(d) (1) request for waiver of service of summons--not just to request a waiver of such service, but also to affect formal service of process by mail, as authorized by Rules 4(e) (1) and 4(h) (1) and Code Civ. Proc. 415.30(a) and (c). I also included a return envelope, postage-prepaid for the acknowledgement of receipt of the notice of lawsuit and the aforementioned waiver. 4. On December 2nd, 2010, Defendant Cao returned the waiver of service of summons, executed, as well as the acknowledgment of his receipt of the notice of lawsuit and the summons and copy of the complaint; subsequently, I filed a copy of the executed waiver and acknowledgment on December 8th, 2010 [see Docket No. 134]. A file-stamped copy of the executed waiver and acknowledgment is attached hereto as Exhibit A. 5. As the record shows, Defendant Cao failed to serve and file an answer or otherwise respond to the complaint within the 60-day time limit set by Rule 12(a), even though the defendant had not extended the deadline by any stipulation of the parties or any order of the Court. 6. Accordingly, on December 8th, 2011, I applied for entry of default by clerk on December 8th, 2010; however, on August 8th, 2011, the clerk declined the application [see Docket No. 138]. On December 12th, 2011, and after having resolved an issue pertaining to the erroneous dismissal of this case against the defendant, I called Mr. Younger by phone in order to ascertain the reason for his denial of the request for entry of default against the defendant. DECLARATION PAGE 2 OF 4 08-cv-01354 LHK

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Mr. Younger stated that a returned and executed waiver of service does not constitute valid proof of service for the purposes of entry of default by clerk; he further stated that any further questions should be directed to the presiding judge in this case. A transcript of the phone conversation with Mr. Younger is attached hereto as Exhibit B. 8. On that same day, after having conducted a review of the applicable Federal Rules of Civil Procedure and relevant case law, I wrote Mr. Younger a letter, showing that, under the circumstances, the returned and executed waiver of service of summons, and the acknowledgement of receipt of the notice of lawsuit and the summons and copy of the complaint, constitutes valid proof of service for the purposes of entry of default by clerk per Rules 4(d) (1) and 55(a). A copy of the letter written to Mr. Younger is attached here to as Exhibit C. 9. Therefore, on December 19th, 2011, I submitted again a request for entry of default by clerk to Mr. Younger, attaching to said request a declaration certifying the relevant facts aforestated in this declaration, and included a copy of the executed waiver and acknowledgment of notice and summons and complaint; however, on December 21st, 2011, Mr. Younger again denied the request for entry of default by clerk for unspecified reasons. 10. In an attempt to ascertain the reasons, I requested by letter to Mr. Younger on December 20th, 2011, a review of his decision to deny the aforementioned request [see Exhibit _ ]; however, when no response was received, I requested an informal review of the adverse decision by Mr. Younger by letter to the Court [see Exhibit _ ]. 11. [purpose of motion] 12. Defendant Cao is not a minor or an incompetent person. I am personally DECLARATION PAGE 3 OF 4 08-cv-01354 LHK

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familiar with and have known Defendant Cao within the past 11 years. I know that he is an adult and appears to be capable of managing his own affairs. 13. Defendant Cao is not in military service. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on January 24th, 2012, in San Jose, California. Dated: January 17th, 2012 By: X James Alan Bush Plaintiff in pro per

DECLARATION

PAGE 4 OF 4

08-cv-01354 LHK

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

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

James Alan Bush, Plaintiff, v. Sunnyvale Department of Public Safety, et al., Defendants.

Case No. 08-cv-01354 LHK EXHIBIT A EXECUTED WAIVER OF SERVICE OF SUMMONS AND ACKNOWLEDGEMENT OF RECEIPT OF NOTICE OF LAWSUIT AND SUMMONS AND COMPLAINT, RETURNED BY DEFENDANT LONG THANG CAO ON DECEMBER 6TH, 2010

EXHIBIT A In support of the attached Motion to Compel Clerk to Perform Duty, the plaintiff hereby incorporates as Exhibit A a copy of the executed waiver of service of summons, which was returned by Defendant Long Thang Cao on December 6th, 2010, and filed by the plaintiff on December 8th, 2010. By signing the waiver, the defendant also acknowledged that he received the notice of lawsuit and the summons and a copy of the complaint by first-class mail, and that he waives formal service of process, thereby accepting formal service of process by mail. EXHIBIT A PAGE 1 OF 3 08-cv-01354 LHK

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT A PAGE 2 OF 3 08-cv-01354 LHK

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT A PAGE 3 OF 3 08-cv-01354 LHK

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

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

James Alan Bush, Plaintiff, v. Sunnyvale Department of Public Safety, et al., Defendants.

Case No. 08-cv-01354 LHK EXHIBIT B TRANSCRIPT OF DECEMBER 12TH, 2011, PHONE CALL BETWEEN PLAINTIFF AND ALBERT J. YOUNGER, DEFAULT CLERK

EXHIBIT B In support of the attached Motion to Compel Clerk to Perform Duty, the plaintiff hereby incorporates as Exhibit B a transcript of the December 12th, 2011, phone call between the plaintiff and Albert J. Younger, Default Clerk. As more fully shown by the transcript, Mr. Younger states that the reason for the denial of the plaintiffs application for entry of default by clerk was based on the failure of the plaintiff to file valid proof of service. EXHIBIT B PAGE 1 OF 5 08-cv-01354 LHK

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TRANSCRIPT OF PHONE CALL BETWEEN PLAINTIFF & ALBERT J. YOUNGER YOUNGER PLAINTIFF YOUNGER PLAINTIFF YOUNGER PLAINTIFF [inaudible] Oh, yeah, um, Im looking for Mr. Younger. Is he available? This is J., yep. Okay, hi. Im, uh Yes? ...James Bush, just one last timeIm so sorry. Um, I was looking at Federal Rules of Civil Procedure, Rule 4, para, uh, subsection d, paragraph 4... YOUNGER PLAINTIFF Uh-huh ...Uh, it states here that when a plaintiff files a waiver, proof of service is not required and these rules apply as if summons and complaint had been served at the time of the filing of the waiver... YOUNGER PLAINTIFF Mm-hm. ...and so, um, Im trying to figure out if that overcomes the obstacle that, um, you said you hit when, um, you were trying to, uh, er, you know, when youwhen you declined the, uh, request for entry of clerks default. YOUNGER PLAINTIFF YOUNGER Uh, Im sorry, Mr. Bush, it really doesnt. Okay, uh, why? If thats the issue, then why doesnt that work? Well, when it comes to a clerks entry of default, it has to be a very...theres a very strict limitation that I have as the clerk; but, not with the judge. The judge can look at other, uh, other criteria, and, uh, you know, other things; but, I cant. I have to see an actual third-party proof of service of summons in order to proceed. EXHIBIT B PAGE 2 OF 5 08-cv-01354 LHK

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PLAINTIFF

Okay, um, just so I dont hit a snag when I take this up with the judge: are there a set of rules or guidelines that youre following that I can, you know, I can get clear on and look at, and that way I dont, uh, waste time with the judge on this, or am I just gonna have to let them figure that out?

YOUNGER

Yeah, I think the judge is gonna have to make the determination as to whether or not your service is sufficient. Um, and then the judge can then direct the clerk to enter default.

PLAINTIFF

Okay, but, I mean, as far as your end goes: what told you that that was insufficient proof of service [and] that you had to have something else?

YOUNGER PLAINTIFF

Well, I go by, uh, Federal Rule of Civil Procedure 55(a). 55(a). Okay, well, Ill look that up on my own, and then, um, if I see anything there... But, you know, thethe whole point of the, you know, uh, asking for a waiver of service of summons is to save money; and, as you know, it costs, typically especially for out-of-county or, er, you know, out-of-state defendantsyou know, it costs money to, you know, um, serve, you know, process. So, what you do is, you ask the defendant to waive that requirement that I serve them process formally you know, through a process server that you pay for; and, if they return it, that means youre not obligated to do it. And, then, [in] the Federal Rules of Civil Procedure, Rule 4, says, basically, if they return that waiver, then thats proof of service, you know, as far as were concerned; thats what that means. But, you know...

YOUNGER EXHIBIT B

Im sure youre absolutely right PAGE 3 OF 5 08-cv-01354 LHK

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PLAINTIFF YOUNGER

Okay, good! Okay but, Federal Rule of Civil Procedure 55(a) says that the clerk is permitted to enter default when a proof of service, including the date of service, is provided.

PLAINTIFF YOUNGER PLAINTIFF

Okay. And, that So, basically, what youre saying is [that] someone who took advantage of the waiver of service of summons rule to, you know, which is there to avoid the cost, you know, um, they will still have to incur that cost if they want default entered. Because thatthat what Id have to do; Id have to re-serve the defendant the summons and complaint, and I have to re-serve it through a process server by paying them [stutters] just for you; but, they would be confused; they would be, like, Why am I being served this again? I didnt need this; I already have the requestthe notice and request. So, whywhy? Are you saying thats how it works?

YOUNGER

Uh, well, IIm saying that I have never filed a clerks entry of default

PLAINTIFF YOUNGER PLAINTIFF YOUNGER

Mm-hm. with a waiver of service. Okay. Its only based on an actual proof of service of summons after having been served.

PLAINTIFF YOUNGER PLAINTIFF EXHIBIT B

Alright. [unintelligible] Okay, well, I will, um, you know PAGE 4 OF 5 08-cv-01354 LHK

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YOUNGER

[inaudible] might be able to do that. The clerksthe clerk wants to see a third-party was involved, and that [stutters]

the defendant was actually served. PLAINTIFF Okay. Well, Ill, uh, you know, it doesnt make sense to me; but, IllIll look into the Rule 55(a), you said... YOUNGER PLAINTIFF Mm-hm ...and, then, I will, um, Ill just draft a letter, and Ill include, if you dont mind, your input into, you know, your rationale for, um, you know, your declination of default, or not accepting the waiver of service of summons as, uh, a proof of service of summons in this case, and, um, well...well try to resolve it. Maybe there just needs to be, uh, uh, a procedural update in your department. YOUNGER PLAINTIFF YOUNGER PLAINTIFF YOUNGER PLAINTIFF YOUNGER PLAINTIFF I cantI cant resolve it. Right. Youll have to speak to the judge... Right. ...the judge in this case [or] the judges clerk. Okay, thats what Ill do. Very good. Thank you.

[End of call] // // // // // EXHIBIT B PAGE 5 OF 5 08-cv-01354 LHK

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

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

James Alan Bush, Plaintiff, v. Sunnyvale Department of Public Safety, et al., Defendants.

Case No. 08-cv-01354 LHK EXHIBIT C LETTER FROM PLAINTIFF TO ALBERT J. YOUNGER, DEFAULT CLERK, DATED DECEMBER 12TH, 2011

EXHIBIT C In support of the attached Motion to Compel Clerk to Perform Duty, the plaintiff hereby incorporates as Exhibit C a copy of the letter written on December 12th, 2011, to Albert J. Younger, Default Clerk, in regards to his denial of the plaintiffs request for entry of default by clerk against Long Thang Cao, Defendant. Attached is a transcript of a phone conversation with Mr. Younger, in which he states that a returned and executed Rule 4(d) (1) waiver does not constitute valid proof of service for the purposes of entry of default. EXHIBIT C PAGE 1 OF 4 08-cv-01354 LHK

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Monday, December 12th, 2011 James Alan Bush 471 East Julian Street San Jose, California 95112 United States District Court, Northern District of California, San Jose Division ATTN: J. Younger, Default Clerk 280 South First Street San Jose, California 95113 In re C 08-01354 PJH [Bush v. Sunnyvale Dept. of Public Safety, et al.] To J. Younger, Default Clerk, United States District Court, Northern District of California, San Jose Division: I am in receipt of the Clerks Declination of Default [Docket No. 138] entered in the above-referenced case on August 8th, 2011, which denied my application to enter default by clerk against Defendant Long Thang Cao, but which failed to specify the reasons for the denial. When I called you on December 12th, 2011, you stated that the denial was based on my failure to file proof of service of summons on the defendant, and that the waiver of service of summons returned by the defendant [see Docket No. 134] and filed with the application [Docket No.135]1 does not constitute a valid proof of service for the purposes of entry of default by clerk. When I pointed out that Rule 4(d)(4) of the Federal Rules of Civil Procedure provides that the filing of an executed waiver supersedes the obligation to file proof of service with the clerk of the court,2 you countered by stating that Rule 55(a) precludes a returned waiver of service of summons as valid proof of service in the consideration of an application for entry of default by clerk; however, the aforementioned rule does not define what constitutes valid proof of service for the purposes of entry of default by clerk, and makes no distinction between a waiver of service of summons and a third-party return in any respect. Rather, Rule 55(a) simply describes the obligation of the clerk to enter default against a party who has failed to plead or otherwise defend, and where that failure is shown by affidavit or otherwise by the moving party. Based on these rules, it appears that the waiver does constitute valid proof of service for the purposes of an application for entry of default by clerk, and that it was the obligation of the clerk to enter default at the time the application was filed. Accordingly, for the reasons stated above, I am requesting that default by clerk be entered against the defendant; otherwise, per your advice, I will attempt to obtain resolution by and through the presiding judge in this case. Sincerely,

James Alan Bush (Plaintiff in pro per)

c: Richard W. Wieking, Clerk of Court

1

As of December 12th, 2011, Docket No. 135 is incorrectly described as a Motion for Default Judgment as to Defendant Long Thang Cao. Docket No. 135 is actually an Application for Entry of Default by Clerk, and Docket No. 136 is correctly described as a Motion for Default Judgment. Today, at 2:59 p.m., I called the clerical secretary of Judge Phyllis H. Hamilton at (510) 637-3537 to correct the error. See also Dahl v. Kanawha Inv. Holding Co., 161 F.R.D. 673, 679-681 n.13 (N.D. Iowa 1995), which held that a plaintiff effects proper service by filing a waiver of service obtained from defendant.

Page 1 of 1

EXHIBIT C

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08-cv-01354 LHK

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

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

James Alan Bush, Plaintiff, v. Sunnyvale Department of Public Safety, et al., Defendants.

Case No. 08-cv-01354 PJH MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AMENDED MOTION TO COMPEL CLERK TO PERFORM DUTY [Fed. R. Civ. P., 7(b), 55(a), 78(b)] Judge Lucy H. Koh I. INTRODUCTION

This memorandum is submitted in support of the plaintiffs motion for an order compelling Albert J. Younger, Default Clerk, to perform his duty to enter default against Defendant, Long Thang Cao, in this case. Plaintiff presents the following grounds for granting such an order: 1. the service by waiver of service of summons on the defendant was valid, and the the proof of service sufficient for the purposes of entry of default by clerk; 2. the request for entry of default was properly made by the plaintiff; MEMORANDA PAGE 1 OF 8 08-cv-01354 LHK

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3. the defendant was in default at the time the request for entry of default was made; 4. it it the ministerial duty of the clerk to enter default under the circumstances; 5. the plaintiff has a beneficial interest in the entry of default by clerk; and, 6. there will be no prejudice against the defendant by granting an order compelling the clerk to enter default. II. ARGUMENT A. AN ORDER SHOULD ISSUE TO COMPEL THE CLERK TO ENTER DEFAULT BECAUSE THIS ACT IS MINISTERIAL, NOT DISCRETIONARY, AND RULE 55(a) OF THE FEDERAL RULES OF CIVIL PROCEDURE CREATES A MANDATORY DUTY IN THE CLERK TO PERFORM THIS ACT UNDER THE CIRCUMSTANCES 1. A motion is the proper remedy to correct the ministerial act of the clerk. After demanding the performance of a ministerial act, and a clerks subsequent refusal to perform it, a party may file a Rule 7(b) motion for an order [see Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807, 813 (1959); Operation RescueNational v. Planned Parenthood of Houston and Southeast Texas, Inc., 937 S.W.2d 60, 87 (Tex.App. Houston [14th Dist.] 1996), judgment affirmed as modified in Operation RescueNational v. Planned Parenthood of Houston and Southeast Texas, Inc., 975 S.W.2d 546 (Tex.1998) Neither an appeal ]. nor a writ of mandate is an appropriate, in that the clerks denial of an request for entry of default is not an appealable order or judgment, and a writ of mandamus is available only after all other remedies have been exhausted [see In re Masonite Corp., 997 S.W.2d 194, 197 (Tex.1999); Walker v. Packer, 827 S.W.2d 833, 84041 MEMORANDA PAGE 2 OF 8 08-cv-01354 LHK

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(Tex.1992) ]. 2. The court is permitted to order entry of default. A courts order of entry of default is within its discretion [Marschhauser v. Travelers Indem. Co. (1992, SD Fla) 145 FRD 605, 24 FR Serv 3d 1037, 6 FLW Fed D 602, 7 FLW Fed D 31]. Although Rule 55(a) implies that default should be entered by clerk without application to the court, this rule is not a limitation, and, the court, having power, may also grant a motion to enter default [United States use of Federal Housing Administration v. Jackson (1938, DC Or) 25 F. Supp. 79]. A court may enter an order of default, although it should be entered by the clerk as a matter of course without any application to the court provided a proper affidavit is filed [Fisher v. Taylor (1940, DC Tenn) 1 FRD 448]. 3. Entry of default is a ministerial act and performance of this duty is mandatory. An act is mandatory when the law clearly spells out the duty to be performed by an official with sufficient certainty that nothing is left to the exercise of discretion [Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex.1991) The clerks ]. duty to enter default is clearly defined by statute, and, in particular, by Rule 55(a) of the Federal Rules of Civil Procedure, which establishes that any defendant failing to answer within the time required by the statute, the clerk, upon the application of the plaintiff, is required to enter the defendants default [see Providence Tool Co. v. Prader (1867) 32 Cal 634, 91 Am Dec 598; see also Fed.R.Civ.P. 55(a) (When 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 MEMORANDA PAGE 3 OF 8 08-cv-01354 LHK

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clerk must enter the partys default.) The clerk, being the arm ]. of the court and an officer in whom the law reposes certain defined powers, in entering a default, acts simply as the agent of the law in placing upon the records of the court that which is already declared to be such by statute. Hence, in cases falling with the statute, the clerk, as such, having the power to enter default without judicial direction or intervention, exercises a ministerial and not a judicial function [see Graydon v. Thomas (1870) 3 Or 250; see also Landwehr v. Gillette (1917) 174 Cal 654, 164 P 1018 (It is, of course, well settled that the authority given the clerk to enter default is, when properly exercised, a ministerial one solely.) ]. B. DEFENDANT WAS IN DEFAULT AT THE TIME THE REQUEST WAS MADE 1. The time period within which the defendant may enter an appearance has expired. A failure to serve an answer within twenty days after being served with a summons and complaint, as required by Fed. R. Civ. P. 12(a) (A), may result in entry of default under FRCP 55 (1) [McMillen v. J.C. Penney Co. (2002, DC Nev) 205 FRD 557]. Any party required to fails to timely file the required responsive pleading or otherwise defend against a pleading seeking judgment for affirmative relief against that party, the defendant ... [Fed. R. Civ. P. 55(a) In most cases, the pleadings ]. that require a responsive pleading are complaints, counterclaims, cross-claims, and third-party complaints.4 Thus, parties served with those pleadings must file responsive pleadings, such as an answer to a complaint, a reply to a counterclaim, an answer to a cross-claim, or an answer to a third-party complaint,5 or defend against those claims in some manner, or suffer a default.6 MEMORANDA PAGE 4 OF 8 08-cv-01354 LHK

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C. SERVICE OF PROCESS WAS VALID AND PROOF OF SERVICE IS SUFFICIENT FOR GRANTING A REQUEST FOR ENTRY OF DEFAULT BY CLERK Service of process was valid and the proof of such service is sufficient for the purposes of granting a request to enter default by clerk, in that the plaintiff abided by the mandates governing service of process prescribed by the Federal Rules of Civil Procedure and California state law in all respects. 1. Defendant was served in conformance with Rule 4 of the Federal Rules of Civil Procedure. Plaintiff served the defendant by notice of lawsuit and request for waiver of service of summons in the manner required by Rule 4(d) (1) of the Federal Rules of Civil Procedure; the notice and waiver were modeled after Forms 5 and 6 of the Appendix of Forms to the Federal Rules of Civil Procedure. 2. Defendant was formally served with process under California state law. Because the plaintiff intended to affect formal service of process to the defendant by mail at the same time as requesting a waiver of such, he sent not only the notice and waiver by first-class mail, as is authorized by Rule 4(d) (G), but also included a (l) summons and a copy of the complaint, along with a return envelope, postage-prepaid. Formal service by this method is permissible per Rules 4(e) (1) and (h) (1), which expressly authorize service according to any method permitted by state law in the judicial district in which service is to be accomplished. Under the law of the State of California, and, in particular, Code Civ. Proc. 415.30(a), (c), service of summons and complaint may be made by first-class mail, but only if that service is accompanied by a notice that conforms to the exact wording set out in Code of Civil Procedure 415.30(b), MEMORANDA PAGE 5 OF 8 08-cv-01354 LHK

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and by an acknowledgment of receipt and a postage-paid return envelope. Plaintiff modified the notice provided by Form 5 of the Appendix of Forms to the Federal Rules of Civil Procedure to conform to the aforestated statutory requirements. By returning an executed waiver, the defendant acknowledged that he received such notice, as well as the summons and complaint, and explicitly waived formal service. 3. A returned and executed waiver of service constitutes valid proof of service for the purposes of entry of default by clerk. Rule 4(d) (4) of the Federal Rules of Civil Procedure provides that the filing of an executed waiver supersedes the obligation to file proof of service with the clerk of the court, and that the summons and complaint is deemed served at the time of filing the waiver [Fed. R. Civ. P. 4(d) (4); Dahl v. Kanawha Inv. Holding Co., 161 F.R.D. 673, 679-681 n.13 (N.D. Iowa 1995) (plaintiff effects proper service by filing waiver of service obtained from defendant) neither ]; Rule 4(d) (4) nor Rule 55(a) differentiate between a executed waiver or a third-party return with respect to te validity of proof of service in the consideration of a request for entry of default by clerk. Furthermore, the defendant, by returning an executed waiver, acknowledges that he received notice of the pending suit and a summons and complaint, and that he explicitly waives formal service, his opportunity to defend against it his receipt of the notice of lawsuit and the 4. Late filing of proof of service does not invalidate the actual service or preclude entry of default for failure to file valid proof of service. Even though the plaintiffs incarceration delayed MEMORANDA PAGE 6 OF 8 08-cv-01354 LHK

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the filing of the requisite proof of service, per Rule 4(l) (3), a failure to promptly file proof of service neither detracts from validity of that service, nor excuses the defendant from appearing and answering or otherwise pleading to complaint [OBrien v Sage Group (1991, ND Ill) 136 FRD 151, 19 FR Serve 3d 1039, mod on other grounds, motion den (1992, ND Ill) 141 FRD 81 and affd (1993, CA7 Ill) 998 F2d 1394, 26 FR Serv 3d 251]. D. PLAINTIFFS REQUEST FOR ENTRY OF DEFAULT WAS PROPERLY MADE PER RULE 55(a) OF THE FEDERAL RULES OF CIVIL PROCEDURE Rule 55(a) calls for submission of an affidavit or other proof establishing that a party has been served with summons and complaint or other pleading seeking affirmative relief, and has failed to file a responsive pleading or otherwise defend the action within the applicable time limit. This proof, which is not required to be served on the defaulting party, supports entry of an order of default. E. THE COURT SHOULD GRANT THIS MOTION BECAUSE THE PLAINTIFF HAS NO ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW The Court should issue an order to compel the clerk to enter default because there is no ad PLAINTIFF HAS A BENEFICIAL INTEREST IN THE ENTRY OF DEFAULT Under federal rules, the defaulting defendant loses many of the rights of the party, such as the right to present evidence on issues other than unliquidated damages, and the right to contest factual allegations made in the complaint; thus, by defaulting, the defendant can reasonably be regarded as having given up most of the benefits that status as that party confers [Blazek v. Capital Recovery Assocs. (2004, ED Wis) 222 FRD 360]. MEMORANDA PAGE 7 OF 8 08-cv-01354 LHK

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G. THIS MOTION HAS BEEN PROMPTLY MADE Plaintiff has acted with due diligence in seeking an order to compel the clerk to enter default against the defendant, in that this motion immediately followed the plaintiffs correspondence to the clerk and the Court, notifying them of the erroneous denial of the request for entry of default by clerk. The declaration of the plaintiff shows that, immediately upon the denial of the request for entry of default by clerk that is the subject of this motion, Dated: January 17th, 2012 By: X James Alan Bush Plaintiff in pro per // // // // // // // // // // // // // //

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