Gates v. Superior Loan Servicing

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA TYRIOUS GATES, Case No. 3:21-cv-06369-WHO 8 Plaintiff, ORDER ON MOTION TO CONTINUE 9 v. CMC, REQUIRING IMMEDIATE SERVICE OF PROCESS 10 SUPERIOR LOAN SERVICING, Re: Dkt. No. 31 Defendant.

13 Plaintiff Tyrious Gates moves to continue the case management conference (“CMC”) that he says is set for today, November 18, 2021. Dkt. No. 31. There was no CMC set for today, so his motion is moot. (It appears that he got that date from the initial case management order issued when the case was before Judge Hixson; the order reassigning the case vacated that date.)

17 Separately, Gates’s motion revealed that he “has not formally served” defendant Superior Loan Servicing (“Superior”). Dkt. No. 31 (emphasis in original). That is deeply troubling. After Gates filed his motion for a temporary restraining order (“TRO”), I set a hearing on it and wrote that “[c]ounsel for the plaintiff is ORDERED to serve the defendant with process and a copy of this Order immediately.” Dkt. No. 12 (emphasis added). That was more than two months ago.

22 Gates filed an affidavit attesting that he effectuated service; it is now plain that he only meant service of the TRO itself, not service of process, despite my clear order. See Dkt. No. 14. Service of process is no mere formality, it permits a court to assert personal jurisdiction over a defendant.

25 Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986), amended, 807 F.2d 1514 (9th Cir. 1987).1 26 Gates is ORDERED to serve Superior with process under Federal Rule of Civil Procedure 4 immediately; he or his counsel is ORDERED to file a declaration under penalty of perjury on || the docket stating that service has been dispatched by 5:00 pm on November 22, 2021. A failure to do either may result in dissolving the preliminary injunction.

4 || ITIS SO ORDERED.

5 Dated: November 19, 2021 6 . liam H. Orrick 8 United States District Judge

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