Johnson v. United States of America et al

Filing 52

ORDER by Judge Edward M. Chen Denying 47 51 Plaintiff's Motion for Default Judgment Against the United States. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 10/8/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES ELLIS JOHNSON,

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Plaintiff,
ORDER DENYING PLAINTIFF’S
MOTION FOR DEFAULT JUDGMENT
AGAINST THE UNITED STATES

v.

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For the Northern District of California

United States District Court

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No. C-13-2405 EMC

UNITED STATES OF AMERICA, et al.,

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Defendants.
___________________________________/

(Docket Nos. 47, 51)
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Plaintiff, James Ellis Johnson, filed suit against the United States, the City and County of

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San Francisco, three employees of the Department of Veterans Affairs Medical Center in San

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Francisco, the Mayor of San Francisco, and the Sheriff of the City and County of San Francisco.

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See Docket No. 1. Plaintiff asserted nine causes of action arising from alleged misconduct by the

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Department of Veterans Affairs Police and the San Francisco County Jail and Sheriff. Currently

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pending before the Court is Plaintiff’s motions for entry of default and default judgment against the

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United States.

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The Court DENIES Plaintiff’s motions for the reasons set forth below.

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I.

FACTUAL & PROCEDURAL BACKGROUND

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Plaintiff filed the complaint on May 28, 2013. The United States Attorney of the Northern

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District (“USAND”) was served with the complaint on May 29, 2013 and the summons on June 3,

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2013.1 See Docket Nos. 10, 11, 33. The United States first responded to the complaint on August

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Plaintiff’s Motion states that the summons was served on June 4, 2013, but the proof of
service states the date as June 3, 2013. See Docket No. 10.

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13, 2013, by filing a motion to dismiss. See Docket No. 22. Sixty days after service of the

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summons would have been August 2, 2013.

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On August 4 and 5, 2013, Plaintiff had inquired at the Clerk’s Office whether the United

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States had responded to his complaint, but was told that he should wait until August 8, 2013, in case

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the United States had sent a response by mail. See Docket Nos. 42 at 1 and 47 at 3.

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On August 7, 2013, Plaintiff met with attorney Manjari Chawla at the Legal Help Center to

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see if Plaintiff had overlooked anything that would allow the United States not to respond. See

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Docket No. 51 at 1. Attorney Chawla advised Plaintiff to serve the complaint and summons also on

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the Attorney General of the United States and the Secretary of Veterans Affairs. Id. at 1-2. She also
advised Plaintiff to serve the USAND again, this time with a copy of the complaint and summons

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For the Northern District of California

United States District Court

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together. Id. at 2. Attorney Chawla advised Plaintiff that the Court would “never agree to a default

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judgment” and advised Plaintiff to give the United States another 60 days. Id. Plaintiff mailed the

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documents to the USAND on August 12, 2013, which the USAND received on August 13, 2013.

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See id.; Docket No. 38 at 2. Plaintiff met with Attorney Chawla again in late September. Id. She

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told Plaintiff that the Court would not enter default judgment against the United States because the

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United States had already responded on August 13, 2013. Id. at 2-3.

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On August 20, 2013, Plaintiff requested the Clerk to enter default against the United States.

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See Docket No. 37. The next day, the United States filed an opposition to Plaintiff’s request. See

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Docket No. 38. The United States asserted that Plaintiff had not perfected service on it because

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Plaintiff had not sent a copy of the complaint and summons by registered or certified mail to the

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Attorney General of the United States as required under Federal Rules of Civil Procedure Rule

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4(i)(1)(B) nor to the Department of Veterans Affairs (“VA”) as required under Federal Rules of

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Civil Procedure Rule 4(i)(1)(C). Id. at 1. It also asserted that the initial service on the USAND was

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technically deficient because the complaint and summons were served separately. Id. at 2. On

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August 22, 2013, the Clerk declined to enter default. See Docket No. 39.

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On August 29, 2013 and again on September 30, 2013, Plaintiff filed motions for entry of

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default and default judgment. See Docket Nos. 47, 51. In the August 29 motion, Plaintiff asserts

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that the Clerk should not have declined to enter default. See Docket No. 47 at 3. He asserts that the

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Clerk should have entered default on August 8, 2013 because the Clerk knew by then that the United

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States had failed to respond by the August 2, 2013 deadline. Id. In the September 30 motion, he

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asserts that Attorney Chawla gave him incorrect advice that he should serve the USAND a second

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time and “withheld information” from him that he needed to file a motion for default judgment

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before the United States responded. See Docket No. 51 at 3. In addition to moving for default

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judgment, he requests the Court to rule that Attorney Chawla committed misconduct. Id.

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II.
A.

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DISCUSSION

Legal Standard
In general, a summons must be served with a copy of the complaint. Fed. R. Civ. P. 4(c). To

serve the United States, a plaintiff must serve a summons and the complaint on each of the

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For the Northern District of California

United States District Court

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following: (1) the United States attorney in the district where the action is brought; (2) the Attorney

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General of the United States at Washington D.C.; and (3) every nonparty agency of the United

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States whose order the action challenges. Fed. R. Civ. P. 4(i).

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Once the United States is served, it has 60 days to respond. Fed. R. Civ. P. 12(a)(2). If a

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party fails to respond by the deadline, the plaintiff may request the clerk of the court to enter default.

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Fed. R. Civ. P. 55(a). The clerk of the court must enter the party’s default upon proof of the failure

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to respond by the deadline. Id. The court may set aside entry of default for good cause. Fed. R.

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Civ. P. 55(c).

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It is within the discretion of the court to deny a motion for default judgment. See id.; Draper

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v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986). Default judgments are disfavored because of “the

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strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.”

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Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). A default judgment may be entered against

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the United States only if the plaintiff establishes a claim or right to relief by evidence that satisfies

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the court. Fed. R. Civ. P. 55(d).

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B.

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Application
The United States is correct that service on it was incomplete because Plaintiff failed to also

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serve the Attorney General of the United States and the VA, given that the VA is not a party to the

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suit and Plaintiff challenges the VA’s order of behavioral restriction placed on him. See Fed. R. Civ.

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P. 4(i); Compl. at 2, 5, 8. Because the United States was not properly served, the 60-day period did

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not begin to run. See Fed. R. Civ. P. 12(a)(2). Therefore, the Clerk of the Court was not required to

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enter default. See Fed. R. Civ. P. 55(a). This conclusion is not affected by whether the USAND

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was served on June 3, 2013 or on August 13, 2013, when it received the summons and complaint

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together.

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Even if the Clerk had entered default on August 8, 2013, the Court would have set it aside.

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An entry of default is little good to Plaintiff unless the Court enters a default judgment for Plaintiff.

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This the Court will not do. The United States filed a motion to dismiss on August 13, 2013, clearly

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indicating its intent to defend the suit. Even if it were 5 days late, the Federal Rules of Civil
Procedure favors the route that can lead to a disposition of the case on the merits, where both sides

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For the Northern District of California

United States District Court

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present their case. See Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). Moreover, the Court

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can enter default judgment against the United States only if Plaintiff establishes a right to relief by

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evidence that satisfies the Court. See Fed. R. Civ. P. 55(d). Plaintiff has not met this burden. To

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obtain relief, Plaintiff will need to prove the VA Police misconduct he alleges. He will also need to

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prove the damages of over $2 million that he demands from the United States. See Compl. at 10.

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Finally, Attorney Chawla did not commit misconduct. She was correct that the complaint

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should be served together with the summons. See Fed. R. Civ. P. 4(c). More importantly, she was

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correct that the Court would not grant default judgment under these circumstances, for the reasons

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explained above.

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Thus, the Court DENIES Plaintiff’s motions for entry of default and default judgment.

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This order disposes of Docket Nos. 47 and 51.

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IT IS SO ORDERED.

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Dated: October 8, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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