Opinion
5:21-CV-3-D
11-02-2021
JOHN MICHAEL SCARDINA, Plaintiff, v. WENDY PANEK and WESLEY ROBINSON, Defendants.
MEMORANDUM AND RECOMMENDATION
Brian S. Meyers, United States Magistrate Judge
This matter comes before the court on the motion [DE-7] by Plaintiff John Michael Scardina (“Plaintiff”), who is proceeding pro se, for entry of default and default judgment against the Defendants, Wendy Panek and Wesley Robinson (“Defendants”). The motion was referred to the undersigned United States Magistrate Judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). [DE-10]. Having carefully reviewed the motion, it is recommended that Plaintiff's motion for entry of default and default judgment be denied, and, for the reasons stated below, Plaintiff be allowed a reasonable time to cure the failure to serve the United States.
Although contested by Plaintiff in his filing at Docket Entry 11, this motion is properly before the undersigned United States Magistrate Judge for a memorandum and recommendation by order [DE-10] of United States District Judge James C. Dever III. Section 636(b)(1) provides that:
(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.
(B) a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. . . .28 U.S.C. § 636(b)(1)(A).
I. BACKGROUND
Plaintiff John Scardina commenced this action against Defendants by filing a Complaint on January 4, 2021. Compl. [DE-1]. In his complaint, Plaintiff alleges that he was denied service at his local Post Office because he did not wear a face mask, which he was unable to wear due to “physical, emotional, and mental conditions[, ]” as well as his “sincere religious beliefs . . . .” Id. at 4. Plaintiff's brief summary of the action appears as follows:
Plaintiff brings this action because Defendants have injured Plaintiff because Plaintiff could not wear one of their face masks, a Self-Hung Instrument of Tyranny, herein after “SHIT, ” while attempting to pick up Plaintiff's mail at the local Post Office in Wake Forest, North Carolina, which is a location of public accommodation that, at all times while injuries occurred, was under the administrative supervision and control collectively of Defendants.Id. at 7. Attached to his complaint, Plaintiff includes a Certificate of Service, indicating that a copy of the complaint was mailed to Defendants Wendy Panek and Wesley Robinson, as well as the Acting Attorney General of the United States and the civil process clerk at the United States Attorney's Office in Washington, D.C. Id. at 10.
On March 11, 2021, Plaintiff filed an Affidavit of Service for Summons and Complaint [DE-5], stating that service had been properly effected on Defendants Panek and Robinson on March 1, 2021. Neither Defendant Panek nor Defendant Robinson filed a response to Plaintiff's complaint. As a result, on May 4, 2021, the Clerk of Court issued a Notice Directing Plaintiff to Proceed After Failure to Answer in accordance with Rule 55(a) of the Federal Civil Procedures and Local Civil Rule 55.1 [DE-6]. Following the Clerk's notice, on May 12, 2021 Plaintiff filed the instant Motion for Entry of Default and Default Judgment [DE-7]. To date, neither Defendant has responded to the complaint in this matter, either personally or by way of counsel.
II. DISCUSSION
Plaintiff asks the court to make an entry of default and grant a default judgment [DE-7] against Defendants who have failed to respond. He alleges that Defendants Wendy Panek and Wesley Robinson failed to respond to his complaint within sixty days of being served, as required by the Federal Rules of Civil Procedure. [DE-7] at 1. In support of his motion, Plaintiff attaches an invoice from JM Field Services as evidence that the complaint and summons were properly served on Defendants Panek and Robinson. [DE-7-1] at 4.
A. MOTIONS FOR ENTRY OF DEFAULT AND DEFAULT JUDGMENT
Rule 55 of the Federal Rules of Civil Procedure provides that “[w]hen 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 clerk must enter the party's default.” Fed.R.Civ.P. 55(a). Nevertheless, “[i]t is axiomatic that service of process must be effective under the Federal Rules of Civil Procedure before a default . . . may be entered against a defendant.” Dingle v. Baggett, No. 5:19-CV-00425-D, 2020 WL 4342212, at *2 (E.D. N.C. July 28, 2020) (second alteration in original) (quoting Md. State Firemen's Ass'n v. Chaves, 166 F.R.D. 353, 354 (D. Md. 1996)); see also Hinson-Gribble v. United States Off. of Pers. Mgmt., No. 5:16-CV-00070-FL, 2018 WL 4016302, at *2 (E.D. N.C. Aug. 22, 2018). “The plaintiff bears the burden of establishing that service of process was effective.” Dingle, 2020 WL 4342212, at *2 (citing Ayres v. Ocwen Loan Servicing, LLC, 129 F.Supp.3d 249, 261 (D. Md. 2015)).
Rule 4 of the Federal Rules of Civil Procedure provides the requirements for a party to effect proper service. See Fed. R. Civ. P. 4. Pursuant to Rule 4, when suing an officer or employee of the United States, whether in an official capacity or individually, a plaintiff must also serve the United States. See Fed. R. Civ. P. 4(i)(2)-(3). To serve the United States, a plaintiff must:
serve[] a copy of the summons and complaint upon 1) the United States Attorney's office of the district where the action is pending or the civil-process clerk for the United States attorney's office; 2) the Attorney General of the United States at Washington, D.C.; and 3) a nonparty agency or officer of the United States, if the action challenges an order of a nonparty agency or officer.Hinson-Gribble, 2018 WL 4016302, at *3 (emphasis added) (citing Fed.R.Civ.P. 4(i)(1)).
Here, Plaintiff has failed to properly serve the United States pursuant to Rule 4(i). While Plaintiff did properly serve the Attorney General of the United States, he failed to serve the United States Attorney's Office for the Eastern District of North Carolina, the district where this action is pending. See Vaughan v. United States, No. 5:01-CV-990-F(3), 2002 WL 1058118, at *1 (E.D. N.C. Apr. 11, 2002) (stating that Rule 4(i) requires that service on the United States must be made by “delivering a copy of the summons and complaint to the United States Attorney [] for the district in which the action is brought or mailing a copy of the same by registered or certified mail to the civil process clerk at that U.S. Attorney's office”). Instead, Plaintiff's complaint reveals that he incorrectly attempted to serve the civil process clerk at the United States Attorney's Office for the District of Columbia. Compl. [DE-1] at 10 (providing the address for the United States Attorney's Office for the District of Columbia - “555 Fourth Street, N.W. Washington, D.C. 20530”). “In light of the foregoing, where service of process has not been effected properly against any named defendant, the court must deny [P]laintiff's motion[] for entry of default.” Hinson-Gribble, 2018 WL 4016302, at *3 (citing Scott v. D.C., 598 F.Supp.2d 30, 36 (D.D.C. 2009)); see also Dingle, 2020 WL 4342212, at *2 (citing Dahl v. Kanawha Inv. Holding Co., 161 F.R.D. 673, 685 (N.D. Iowa 1995)).
Furthermore, “[w]ithout an entry of default, the [c]ourt cannot enter a default judgment.” Danielson v. Human, No. 3:12-cv-840-FDW-DSC, 2013 WL 12218467, at *1 (W.D. N.C. Oct. 21, 2013); see also Dingle, 2020 WL 4342212, at *3 (“The court cannot grant a motion for default judgment if it has not first entered default.”); Eagle Fire, Inc. v. Eagle Integrated Controls, Inc., No. 3:06-cv-264, 2006 WL 1720681, at *5 (E.D. Va. June 20, 2006) (“The entry of default is a procedural prerequisite to the entry of a default judgment.”). Accordingly, the court recommends that Plaintiff's motion for both entry of default and default judgment should be denied.
B. TIMELINESS OF SERVICE UNDER RULE 4(m)
Under Rule 4(m) of the Federal Rules of Civil Procedure, a plaintiff must serve a defendant within 90 days of filing their complaint. Fed.R.Civ.P. 4(m). If the plaintiff fails to do so, the court “must [either] dismiss the action without prejudice against that defendant or order that service be made within a specific time.” Id. When there is “good cause for the failure, the court must extend the time for service for an appropriate period.” Id.
Here, Plaintiff filed his complaint on January 4, 2021, and was required to serve Defendants by March 4, 2021. As discussed above, Plaintiff has yet to properly serve the United States. Because it has now been more than 90 days since his complaint was filed, Plaintiff has failed to comply with the requirements of Rule 4(m). However, Plaintiff did attempt to timely serve Defendants. Plaintiff properly served Defendant Panek, Defendant Robinson and the Acting Attorney General of the United States. He also attempted to serve the United States Attorney's Office, albeit in the wrong district. In light of his attempts, the court finds that Plaintiff can show good cause for his failure to effect service within the 90-day time limit. Accordingly, the court recommends that Plaintiff's deadline to effect service pursuant to Rule 4(i) be extended in accordance with Rule 4(m).
To note, under Rule 4(i)(4)(B), “[t]he court must allow a party a reasonable time to cure its failure to . . . serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee.” Fed.R.Civ.P. 4(i)(4)(B). Rule 4(i)(3) applies when a party sues an officer or employee individually. It is unclear here whether Plaintiff asserts claims against Defendants in either an individual or official capacity. Given the court's recommendation to extend the deadline to effect service above under the general authority provided by Rule 4(m), the court does not make a determination as to whether Plaintiff has sued Defendants in either an individual or official capacity, and thus, whether Rule 4(i)(4)(B) applies here.
III. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's motion for entry of default and default judgment [DE-7] against Defendants Wendy Panek and Wesley Robinson be DENIED. Should the district court accept this recommendation, the undersigned further recommends that, for good cause shown, Plaintiff's deadline to effect service on the United States be EXTENDED thirty days from the date the district court's order is entered. In addition, the undersigned recommends Plaintiff be given an additional ten days after the deadline to effect service in order to show proof of service on the record.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until November 17, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written
objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).