Barbosa v. Human Resources Office DoDEA et al

Filing 16

ORDER denying 15 Motion for Entry of Default by Clerk; no later than 7/6/2021, Plaintiff shall effect service of process on Defendants and file proof of such service. SEE ORDER FOR DETAILS. Signed by Magistrate Judge James R. Klindt on 6/3/2021. (BHC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
SHIANA K. BARBOSA,
Plaintiff,
v.

Case No. 3:19-cv-1185-HES-JRK

HUMAN RESOURCES OFFICE
DODEA, LLOYD J. AUSTIN III,1
and JAY M. BURCHAM,
Defendants.
ORDER
This cause is before the Court on the Motion for Entry of Default by Clerk
(Doc. No. 15; “Motion”), filed May 6, 2021, in which Plaintiff requests that
default be entered against all Defendants. Upon review, the Motion is due to be
denied.
Rule 4(i)(2) sets forth the rules governing service of process in cases in
which a plaintiff sues a United States agency or a United States officer in his
or her official capacity. In such cases, the plaintiff must: 1) serve the United
States; and, 2) “send a copy of the summons and of the complaint by registered

Lloyd J. Austin III became the United States Secretary of Defense on January
22, 2021. Pursuant to Rule 25(d), Federal Rules of Civil Procedure (“Rule(s)”), Lloyd J. Austin
III is substituted for Mark T. Esper as a Defendant in this suit.
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or certified mail to the agency, corporation, officer, or employee” being sued.
Fed. R. Civ. P. 4(i)(2). To serve the United States, the plaintiff 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 civilprocess 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.
Fed. R. Civ. P. 4(i)(1).
Here, Plaintiff has failed to properly effect service of process on
Defendants. First, Plaintiff has offered no proof that she has served the
Department of Defense Education Activity (DoDEA), Human Resources
Division. Second, Plaintiff sent Jay M. Burcham a copy of the summons and of
the complaint by certified mail pursuant to Rule 4(i)(2) on May 15, 2020, see
Affidavit of Service via Certified Mail (Doc. No. 14), filed November 9, 2020, but
she did not serve the United States under Rule 4(i)(1). Third, it appears Plaintiff
personally served Mark T. Ester (the United States Secretary of Defense at the
time of service) on November 5, 2019, see Affidavit of Service (Doc. No. 13), filed
November 9, 2020, but she failed to serve the United States.
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Based on the foregoing, the Motion is due to be denied. Plaintiff shall
properly effect service of process on Defendants as failure to do so may result in
dismissal of her case for failure to prosecute. See Local Rule 3.10, United States
District Court, Middle District of Florida. In doing so, Plaintiff shall ensure that
a copy of the summons and of the complaint is sent by registered or certified
mail to the current United States Secretary of Defense, Lloyd J. Austin III. See
Fed. R. Civ. P. 4(i)(2).
Accordingly, it is
ORDERED:
1.

The Motion for Entry of Default by Clerk (Doc. No. 15) is DENIED.

2.

No later than July 6, 2021, Plaintiff shall effect service of process

on Defendants and file proof of such service.
DONE AND ORDERED in Jacksonville, Florida on June 3, 2021.

bhc
Copies to:
Counsel of Record

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