Muhammad v. Bethel-Muhammad et al

Filing 76

Order re: 66 Motion and Application to Clerk for Entry of Default as to Brenda Bethel filed by Kalim A.R. Muhammad. The motion is denied, without prejudice to his ability to seek default at an appropriate time. Signed by Chief Judge William H. Steele on 3/26/2012. Copy mailed to Plaintiff & Paul Vaughn Russell. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KALIM A.R. MUHAMMAD, etc.,

)
)
Plaintiff,
)
)
v.
) CIVIL ACTION 11-0690-WS-B
)
BRENDA BETHEL-MUHAMMAD, et al.,)
)
Defendants.
)
ORDER
This matter is before the Court on the plaintiff’s “motion and application for
default judgment on Brenda Bethel.” (Doc. 66). “When a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend,” it is
subject to entry of default. Fed. R. Civ. P. 55(a). But a defendant is under no obligation
to plead or otherwise defend until and unless it is “served with the summons and
complaint.” Id. Rule 12(a)(1)(A)(i); accord Securities and Exchange Commission v.
Wright, 261 Fed. Appx. 259, 261 (11th Cir. 2008). Thus, “[b]efore a default can be
entered, … the party must have been effectively served with process.” 10 Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure § 2682 at 14 (3rd ed. 1998).
And when service of process is at issue, “it [i]s proper for the court rather than the clerk
to consider [the plaintiff’s] request” for entry of default. Sandoval v. Bluegrass Regional
Mental Health – Mental Retardation Board, 2000 WL 1257040 at *5 (6th Cir. 2000).
The plaintiff has filed a green card reflecting that Bethel signed for a certified
mailing addressed to her. (Doc. 67). According to the plaintiff, this mailing included
summons, the amended complaint, and waiver-of-service forms. (Doc. 66 at 4). The
plaintiff has therefore established service of process on Bethel. However, the green card
reflects receipt on March 13, 2012, such that the time for responding has not expired and

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Bethel cannot be in default. Accordingly, the plaintiff’s motion is denied, without
prejudice to his ability to seek default at an appropriate time.1
DONE and ORDERED this 26th day of March, 2012.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

1

The plaintiff also asserts personal service on Bethel, but the audio and video files he has
submitted reflect that it was the plaintiff himself who delivered the papers to Bethel. As the
Court previously warned the plaintiff, (Doc. 63 at 2 n.1), service cannot be made by a party.
Fed. R. Civ. P. 4(c)(2); Ala. R. Civ. P. 4(i)(1)(B).
The plaintiff also offers the affidavit of a process server, (Doc. 74), but that document
reflects that the process server merely left the papers “at the individual’s dwelling house or usual
place of abode in a reasonably conspicuous manner.” (Id. at 1). This does not constitute good
service under either federal or Alabama law. Fed. R. Civ. P. 4(e)(2); Ala. R. Civ. P. 4(c)(1).

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