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 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. 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 3

Following is the transcript of our third phone conversation, which occurred at 11:53 a.m. today:
Younger Bush Younger Bush Younger Bush Younger Bush Younger Bush Younger Bush [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 time; Im so sorry. Um, I was looking at Federal Rules of Civil Procedure, Rule 4, para, uh, subsection d, paragraph 4. 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... 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. 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 verytheres 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. 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? 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. 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? 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, typicallyespecially for out-of-county or, er, you know, out-ofstate 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 formallyyou 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 Im sure youre absolutely right Okay, good! Okay

Younger

Bush Younger Bush Younger

Bush

Younger Bush

Page 2 of 3

Younger Bush 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. 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 reserve 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? Uh, well, IIm saying that I have never filed a clerks entry of default Mm-hm. with a waiver of service. Okay. Its only based on an actual proof of service of summons after having been served. Alright. [unintelligible] Okay, well, I will, um, you know [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. Okay. Well, Ill, uh, you know, it doesnt make sense to me; but, IllIll look into the Rule 55(a), you said 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, wellwell try to resolve it. Maybe there just needs to be, uh, uh, a procedural update in your department. 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.

Bush

Younger Bush Younger Bush Younger Bush Younger Bush Younger Bush Younger

Bush

Younger Bush Younger Bush Younger Bush Younger Bush End of call

Page 3 of 3