Phillipps et al v. Lee et al

Filing 12

ORDER by Judge Hamilton denying 11 Motion for Entry of Default. (pjhlc1, COURT STAFF) (Filed on 5/18/2017) (Additional attachment(s) added on 5/18/2017: # 1 Certificate/Proof of Service) (kcS, COURT STAFF).

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 9 10 JOHN C. PHILIPPS, et al., United States District Court Northern District of California 12 Case No. 17-cv-1021-PJH Plaintiffs, 11 ORDER DENYING MOTION FOR DEFAULT JUDGMENT v. 13 MICHELLE K. LEE, et al., 14 Defendants. 15 16 17 The court is in receipt of a motion for default judgment against defendant Michelle 18 K. Lee, Director of the United States Patent and Trademark Office (“USPTO”). The 19 motion is DENIED because plaintiff did not first seek entry of default by the clerk. To the 20 extent that the motion can be construed as a request for entry of default, it is DENIED 21 because plaintiff has not established that he properly served defendant with the 22 summons and complaint. 23 Plaintiff filed the complaint in this action on February 27, 2017. On May 12, 2017, 24 plaintiff filed the present motion, asserting that Director Lee had failed to plead or 25 otherwise defend as required by Federal Rule of Civil Procedure 55(a)(1)(d). He 26 attached a proof of service, in which a Process Server stated that he had served the 27 complaint by certified U.S. Mail on Director Lee on March 2, 2017. He does not say 28 whether he also served the summons. He attached a copy of the tracking information 1 2 from the U.S. Postal Service, showing delivery on March 2, 2017. In federal court, except as to defendants outside the country, service must be 3 made within 90 days after filing the complaint, or the case will be dismissed unless “good 4 cause” is shown for the delay. Fed. R. Civ. P. 4(m). 5 Service of process on the United States requires the following: (1) Personal delivery of the summons and complaint to the U.S. Attorney for the district where the 7 action is brought (or to an Assistant U.S. Attorney or clerical employee designated by the 8 U.S. Attorney in a writing filed with the court clerk); or delivery of copies of the summons 9 and complaint by registered or certified mail addressed to the civil process clerk at the 10 U.S. Attorney’s office; and (2) delivery of the summons and complaint by registered or 11 United States District Court Northern District of California 6 certified mail to the Attorney General of the United States in Washington, D.C. See Fed. 12 R. Civ. P. 4(i)(1). Service on both the U.S. Attorney and the Attorney General is required. 13 Where the defendant is a federal agency or corporation of the United States, or 14 federal officer served in his or her official capacity, service may be effected by serving the 15 U.S. in accordance with the above procedures; and in addition, sending copies of the 16 summons and complaint by registered or certified mail to the officer, agency, or 17 corporation. Fed. R. Civ. P. 4(i)(2). Where federal officers are sued in their individual 18 capacity, the summons and complaint must be personally served. See Fed. R. Civ. P. 19 4(e)(1); Cal. Civ. P. Code § 415.10, et seq. 20 A defendant generally has 21 days after service of the summons and complaint 21 within which to answer the complaint or file a Rule 12 motion. Fed. R. Civ. P. 12(a)(1). 22 Where the U.S. Government or an officer or agency is a defendant, the time to respond is 23 60 days after service on the U.S. Attorney. Fed. R. Civ. P. 12(a)(2). Where a U.S. officer 24 or employee is sued in an individual capacity, the time to respond is 60 days after service 25 on the U.S. Attorney or on the officer or employee, whichever is later. Fed. R. Civ. P. 26 12(a)(3). 27 28 Finally, in the event that defendants do not timely respond after having been properly served, the plaintiff may seek entry of default. Fed. R. Civ. P. 55(a). Only after 2 1 default has been entered by the clerk may plaintiff apply for judgment based on the 2 default. See Fed. R. Civ. P. 55(b). 3 4 In addition to the above, the court recommends that plaintiff review the materials available on the court’s website, under the link “If You Don’t Have a Lawyer.” 5 6 IT IS SO ORDERED. 7 Dated: May 18, 2017 8 9 __________________________________ PHYLLIS J. HAMILTON United States District Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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