Gilliam v. U.S. Department of Veterans Affairs

Filing 22

ORDER denying without prejudice 21 Plaintiff's Motion for Default. Signed by Magistrate Judge Carol Mirando on 5/15/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EDWARD LEE GILLIAM,
Plaintiff,
v.

Case No: 2:16-cv-255-FtM-29CM

U.S. DEPARTMENT OF
VETERANS AFFAIRS,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiff’s Motion for
Default (Doc. 21) filed on May 12, 2017. Plaintiff seeks a Clerk’s entry of default as
to Defendant the United States Department of Veterans Affairs (“VA”).
Plaintiff includes a Certificate of Service in the present motion.

Doc. 21.

Id. at 4.

Pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, “[w]hen a party
against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must
enter the party’s default.”

Similarly, Middle District of Florida Local Rule 1.07(b)

provides:
When service of process has been effected but no appearance or response
is made within the time and manner provided by Rule 12, Fed. R. Civ.
P., the party effecting service shall promptly apply to the Clerk for entry
of default pursuant to Rule 55(a), Fed. R. Civ. P.
M.D. Fla. R. 1.07(b).

Prior to directing the Clerk to enter a default, the Court must

first determine whether Plaintiff properly effected service of process.

United States

v. Donald, No. 3:09-cv-147-J-32HTS, 2009 WL 1810357, at *1 (M.D. Fla. June 24,
2009).
In order to effectuate service on the United States or its agencies, a plaintiff
must comply with Rule 4(i) of the Federal Rules of Civil Procedure.

Rule 4(i) states

in relevant part:
(1) United States. To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the complaint to the
United States attorney for the district where the action is
brought—or to an assistant United States attorney or clerical
employee whom the United States attorney designates in a
writing filed with the court clerk—or
(ii) send a copy of each by registered or certified mail to the
civil-process clerk at the United States attorney’s office;
(B) send a copy of each by registered or certified mail to the Attorney
General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of
the United States, send a copy of each by registered or certified mail to
the agency or officer.
(2) Agency; Corporation; Officer or Employee Sued in an Official
Capacity. To serve a United States agency or corporation, or a United
States officer or employee sued only in an official capacity, a party must
serve the United States and also send a copy of the summons and of the
complaint by registered or certified mail to the agency, corporation,
officer, or employee.
Fed. R. Civ. P. 4(i).
Here, the Court finds that Plaintiff has not properly served the VA under Rule
4(i)(2).

Plaintiff states that he sent a copy of the Second Amended Complaint by

registered mail to the VA only.

Doc. 21 at 1, 4.

In order to effectuate proper service

of process upon the VA, Plaintiff must serve the United States pursuant to Rule 4(i)(1)

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and also send a copy of both the summons and the Second Amended Complaint by
registered or certified mail to the VA.

Fed. R. Civ. P. 4(i)(2).

Although Plaintiff is

proceeding as pro se, Plaintiff should be aware that he “must follow the rules of
procedure,” and “the district court has no duty to act as a pro se party’s lawyer.”

United States v. Hung Thien Ly, 646 F.3d 1307, 1315 (11th Cir. 2011); Harvick v.
Oak Hammock Pres. Cmty. Ass’n Inc., No. 6:14-cv-937-Orl-40GJK, 2015 WL 667984,
at *2 (M.D. Fla. Feb. 17, 2015). The Court reminds Plaintiff that Plaintiff has up to
and including June 16, 2017 to properly serve the VA. 1 Doc. 20.
ACCORDINGLY, it is hereby
ORDERED:
Plaintiff’s Motion for Default (Doc. 21) is DENIED without prejudice.
DONE and ORDERED in Fort Myers, Florida on this 15th day of May, 2017.

Copies:
Edward Lee Gilliam

On February 27, 2017, Plaintiff filed the Second Amended Complaint. Doc. 17.
Senior United States District Judge John E. Steele ordered Plaintiff to show cause for failure
to prosecute this case. Doc. 18. Plaintiff responded to the Order (Doc. 18) by asking to
extend his time to properly serve the VA. Doc. 19. The Court granted his motion and
allowed him to have up to and including June 16, 2017 to execute service of process. Doc.
20.
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