Monday, December 30th, 2011

James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866

United States District Court, Northern District of California, San Jose Division ATTN: Judge Lucy Koh 280 South First Street San Jose, California 95113 (408) 535-5393

In re Request for Entry of Default by Clerk against Defendant Long Thang Cao In re [C 08-01354 PJH (Bush v. Sunnyvale Dept. of Public Safety, et al.)]

To the Honorable Judge Lucy H. Koh, District Judge, United States District Court for the Northern District of California:

Please find enclosed the Request to Enter Default by Clerk against Defendant Long Thang Cao, which was declined by the default clerk for failure to provide valid proof of service of summons (attached). This letter seeks a determination as to whether the proof of service for the aforementioned defendant is sufficient for the purposes of granting a such a request per Rule 55(a) of the Federal Rules of Civil Procedure.

For the reasons stated in the attached letter to Albert J. Younger, Default Clerk, the proof of service relevant to the request is valid; however, Mr. Younger insisted that it is not and has deferred this matter for adjudication.

In short, the executed waiver returned by Defendant Cao on December 8th, 2011 (attached) constitutes valid proof of service per Rule 4(d)(4) of the Federal Rules of Civil Procedure [Dahl v. Kanawha Inv. Holding Co., 161 F.R.D. 673, 679-681 n.13 (N.D. Iowa 1995)]; and, the executed waiver was attached to the request submitted on December 19th, 2011 (attached).

Based on this reason, I am requesting that the Court grant the request for entry of default by clerk.

Sincerely,

James Alan Bush (Plaintiff in pro per)

Enclosures: Default Declined as to Plaintiff’s Request for Entry of Default by Clerk against Defendant Long Thang Cao Returned and Executed Waiver of Service of Summons by Defendant Long Thang Cao Plaintiff’s Second Request for Entry of Default by Clerk Letter to Albert J. Younger, Default Clerk, from Plaintiff (with transcript)

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REQUEST PAGE 1 OF 1 08-cv-01354 (PR) JF

REQUEST TO CLERK TO ENTER DEFAULT

TO THE CLERK OF THE UNITED STATES DISTRICT COURT:

Defendant, Long Thang Cao, having failed to answer or otherwise appear in

the above-entitled action, and the time for appearance having expired, you

are requested to enter default against Defendant, Long Thang Cao, pursuant

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

Dated: December 19th, 2011

By: X James Alan Bush

Plaintiff in pro per

James Alan Bush471 East Julian StreetSan Jose, California 95112(408) 791-4866

Plaintiff in pro per

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

James Alan Bush,

Plaintiff,

v.

Sunnyvale Department ofPublic Safety, et al.,

Defendants.

Case No. 08-cv-01354 PJH

REQUEST TO CLERK TO ENTER DEFAULT

Judge Lucy H. Koh

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DECLARATION PAGE 2 OF 2 08-cv-01354 (PR) JF

DECLARATION OF PLAINTIFF

I, James Alan Bush, in support of the attached Request to Clerk to Enter

Default, declare as follows:

1. I am the plaintiff in the above-captioned matter.

2. A Notice of Lawsuit and Waiver of Service of Summons was sent to

Defendant, Long Thang Cao, on December 2nd, 2010, in accordance with

Rule 4(d)(1) of the Federal Rules of Civil Procedure.1

1 Although all defendants were sent a waiver within 60 days of the commencement of this action, an additional waiver was sent to Defendant Cao on the specified date, as well.

James Alan Bush471 East Julian StreetSan Jose, California 95112(408) 791-4866

Plaintiff in pro per

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

James Alan Bush,

Plaintiff,

v.

Sunnyvale Department ofPublic Safety, et al.,

Defendants.

Case No. 08-cv-01354 PJH

DECLARATION OF PLAINTIFF IN SUPPORT OF REQUEST TO CLERK TO ENTER DEFAULT

Judge Lucy H. Koh

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DECLARATION PAGE 3 OF 2 08-cv-01354 (PR) JF

3. An executed waiver of service of summons was returned by the

aforementioned defendant on December 8th, 2010 [Docket No. 134].

4. Defendant, Long Thang Cao, has not answered or otherwise appeared in

this action, and time within which defendant may appear has expired.

5. 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 the 19th day of December, 2011, in San Jose,

California.

Dated: December 19th, 2011

By: X James Alan Bush

Plaintiff in pro per

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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 Clerk’s 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 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.

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 (see attached transcript); 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.

2 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.

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Following is the transcript of our third phone conversation, which occurred at 11:53 a.m. today:

Younger [inaudible]

Bush Oh, yeah, um, I’m looking for Mr. Younger. Is he available?

Younger This is J., yep.

Bush Okay, hi. I’m, uh…

Younger Yes?

Bush ...James Bush, just one last time; I’m so sorry. Um, I was looking at Federal Rules of Civil Procedure, Rule 4, para—, uh, subsection d, paragraph 4.

Younger Uh-huh…

Bush 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 Mm-hm.

Bush…and so, um, I’m 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 you…when you declined the, uh, request for entry of clerk’s default.

Younger Uh, I’m sorry, Mr. Bush, it really doesn’t.

Bush Okay, uh, why? If that’s the issue, then why doesn’t that work?

Younger

Well, when it comes to a clerk’s entry of default, it has to be a very…there’s 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 can’t. I have to see an actual third-party proof of service of summons in order to proceed.

BushOkay, um, just so I don’t hit a snag when I take this up with the judge: are there a set of rules or guidelines that you’re following that I can, you know, I can get clear on and look at, and that way I don’t, 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.

Bush 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 Well, I go by, uh, Federal Rule of Civil Procedure 55(a).

Bush

55(a). Okay, well, I’ll look that up on my own, and then, um, if I see anything there… But, you know, the…the 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 defendants—you 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 you’re not obligated to do it. And, then [in] the Federal Rules of Civil Procedure, Rule 4, says, basically, if they return that waiver, then that’s proof of service, you know, as far as we’re concerned; that’s what that means. But, you know…

Younger I’m sure you’re absolutely right…

Bush Okay, good! Okay…

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Younger …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.

Bush Okay.

Younger And, that…

Bush

So, basically, what you’re 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 that…that what I’d have to do; I’d 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 didn’t need this; I already have the request…the notice and request. So, why…why…?” Are you saying that’s how it works?

Younger Uh, well, I…I’m saying that I have never filed a clerk’s entry of default…

Bush Mm-hm.

Younger …with a waiver of service.

Bush Okay.

Younger It’s only based on an actual proof of service of summons after having been served.

Bush Alright.

Younger [unintelligible]

Bush Okay, well, I will, um, you know…

Younger [inaudible] might be able to do that. The clerk’s…the clerk wants to see a third-party was involved, and that [stutters] the defendant was actually served.

Bush Okay. Well, I’ll, uh, you know, it doesn’t make sense to me; but, I’ll…I’ll look into the Rule 55(a), you said…

Younger Mm-hm…

Bush

..and, then, I will, um, I’ll just draft a letter, and I’ll include, if you don’t 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, we’ll…we’ll try to resolve it. Maybe there just needs to be, uh, uh, a procedural update in your department.

Younger I can’t…I can’t resolve it.

Bush Right.

Younger You’ll have to speak to the judge...

Bush Right.

Younger …the judge in this case [or] the judge’s clerk.

Bush Okay, that’s what I’ll do.

Younger Very good.

Bush Thank you.

End of call