Memorandum of Decision Re: Service on Attorney

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re BOLERO RESTAURANT, INC.,                                                No. 98-13040      Debtor(s). ______________________________________/ RAYMOND A. CAREY, Trustee,      Plaintiff(s),    v.                                                                                                A.P. No. 99-1092 EDWARD PIZZUTI, et al.,      Defendant(s). _______________________________________/
Memorandum
     An attorney made an appearance in court on behalf of defendants in response to the court's order to show cause to argue against the issuance of a temporary restraining order when the case commenced. The attorney did not qualify her appearance in any way. Plaintiff served that attorney with the complaint after the hearing. The issue is whether that service was valid.      Rule 5(b) of the Federal Rules of Civil Procedure, made applicable to this adversary proceeding by FRBP 7005, provides that "[w]henever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party is ordered by the court." Defendants argue that the term "these rules" refers to Rule 5(a), which excludes service of the complaint. However, the court interprets "these rules" as referring to the Federal Rules of Civil Procedure. Once an attorney has made a general appearance on behalf of a party, any pleading may be served on that attorney. This includes the complaint.      Since the defendants had appeared and submitted to the court's jurisdiction in response to the court's order to show cause, no summons was needed. "A general appearance or responsive pleading by a defendant that fails to dispute personal jurisdiction will waive any defect in service or personal jurisdiction." Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986).      It appearing that service was proper, defendants' motion to be relieved from default will be granted upon the payment of $686.00 to counsel for plaintiff, who shall submit an appropriate form of order.
Dated: October 24, 1999                                                          ____________________________                                                                                                  Alan Jaroslovsky                                                                                                  United States Bankruptcy