Brantley v. Myrick

Filing 25

ORDER denying 24 the Plaintiff, Brian Brantley's Motion for Entry of a Clerk's Default. Signed by Magistrate Judge Sheri Polster Chappell on 3/22/2013. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRIAN TIMOTHY BRANTLEY,
Plaintiff,
v.

Case No: 2:12-cv-361-Ftm-99SPC

DRUG ENFORCEMENT
ADMINISTRATION,
Defendant.
___________________________________/
ORDER
This matter comes before the Court on the Plaintiff, Brian Brantley's Motion for Entry of
a Clerk's Default (Doc. #24) filed on March 20, 2013. Under Fed. R. Civ. P. 55(a), default is
justified “[w]hen a party against whom a judgment for affirmative relief is sought has failed to
plead or otherwise appear by affidavit or otherwise, the clerk shall enter the party’s default.”
As grounds for entry for a Clerk’s Default, the Plaintiff states that the Defendant DEA
was served on September 18, 2012, and was therefore required to answer by November 17, 2012.
When the Defendant did not answer by November 17, 2013, the Plaintiff filed a Motion for
Clerk’s Default. (Doc. # 17). On December 17, 2012, the Court denied the Plaintiff’s initial
Motion for a Clerk’s Default because the Plaintiff’s original service upon the Defendant was
ineffectual. The Court instructed the Plaintiff that in order to serve the United States or an
agency of the United States like the DEA, the Plaintiff had to serve the U.S. Attorney in the
district where the law suit was filed and the Attorney General of the United States. Fed. R. Civ.
P. 4(i)(1)(2).
The Plaintiff was then directed to serve the U.S. Attorney for the Middle District of
Florida and the United States Attorney General as required by Fed. R. Civ. P. 4(i)(1)(2). The

Clerk re-issued the Plaintiff’s summons and directed the U.S. Marshal’s Service to effect service
in accord with the Federal Rules.
On January 8, 2013, the U.S. Marshal’s Service served the U.S. Attorney for the Middle
District of Florida. On January 15, 2013, the U.S Marshal’s Service subsequently served the
United States Attorney General. As noted by the Plaintiff in his Motion, an agency of the United
States, like the DEA, has sixty (60) days to file an answer or otherwise respond to a complaint.
In this case, the Defendant DEA filed its Answer and Affirmative Defenses on March 1, 2013,
well within the deadline for the DEA to answer under the Federal Rules. Thus, the Motion for
Clerk’s Default is due to be denied.
Accordingly, it is now
ORDERED:
The Plaintiff, Brian Brantley's Motion for Entry of a Clerk's Default (Doc. #24) is
DENIED.
DONE and ORDERED in Fort Myers, Florida this 22nd day of March, 2013.

Copies: All Parties of Record

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