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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN C. PHILIPPS, et al.,

United States District Court
Northern District of California

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Case No. 17-cv-1021-PJH

Plaintiffs,

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ORDER DENYING MOTION FOR
DEFAULT JUDGMENT

v.

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MICHELLE K. LEE, et al.,

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Defendants.

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The court is in receipt of a motion for default judgment against defendant Michelle

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K. Lee, Director of the United States Patent and Trademark Office (“USPTO”). The

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motion is DENIED because plaintiff did not first seek entry of default by the clerk. To the

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extent that the motion can be construed as a request for entry of default, it is DENIED

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because plaintiff has not established that he properly served defendant with the

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summons and complaint.

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Plaintiff filed the complaint in this action on February 27, 2017. On May 12, 2017,

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plaintiff filed the present motion, asserting that Director Lee had failed to plead or

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otherwise defend as required by Federal Rule of Civil Procedure 55(a)(1)(d). He

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attached a proof of service, in which a Process Server stated that he had served the

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complaint by certified U.S. Mail on Director Lee on March 2, 2017. He does not say

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whether he also served the summons. He attached a copy of the tracking information

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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

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made within 90 days after filing the complaint, or the case will be dismissed unless “good

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cause” is shown for the delay. Fed. R. Civ. P. 4(m).

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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

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action is brought (or to an Assistant U.S. Attorney or clerical employee designated by the

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U.S. Attorney in a writing filed with the court clerk); or delivery of copies of the summons

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and complaint by registered or certified mail addressed to the civil process clerk at the

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U.S. Attorney’s office; and (2) delivery of the summons and complaint by registered or

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United States District Court
Northern District of California

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certified mail to the Attorney General of the United States in Washington, D.C. See Fed.

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R. Civ. P. 4(i)(1). Service on both the U.S. Attorney and the Attorney General is required.

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Where the defendant is a federal agency or corporation of the United States, or

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federal officer served in his or her official capacity, service may be effected by serving the

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U.S. in accordance with the above procedures; and in addition, sending copies of the

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summons and complaint by registered or certified mail to the officer, agency, or

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corporation. Fed. R. Civ. P. 4(i)(2). Where federal officers are sued in their individual

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capacity, the summons and complaint must be personally served. See Fed. R. Civ. P.

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4(e)(1); Cal. Civ. P. Code § 415.10, et seq.

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A defendant generally has 21 days after service of the summons and complaint

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within which to answer the complaint or file a Rule 12 motion. Fed. R. Civ. P. 12(a)(1).

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Where the U.S. Government or an officer or agency is a defendant, the time to respond is

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60 days after service on the U.S. Attorney. Fed. R. Civ. P. 12(a)(2). Where a U.S. officer

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or employee is sued in an individual capacity, the time to respond is 60 days after service

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on the U.S. Attorney or on the officer or employee, whichever is later. Fed. R. Civ. P.

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12(a)(3).

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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
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default has been entered by the clerk may plaintiff apply for judgment based on the

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default. See Fed. R. Civ. P. 55(b).

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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.”

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IT IS SO ORDERED.

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Dated: May 18, 2017

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__________________________________
PHYLLIS J. HAMILTON
United States District Judge

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United States District Court
Northern District of California

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