Johnson v. United States of America

Filing 15

ORDER denying 12 Motion for Entry of Default. Signed by Magistrate Judge Thomas B. Smith on 3/24/2017. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JO ANN JOHNSON,
Plaintiff,
v.

Case No: 6:17-cv-64-Orl-41TBS

UNITED STATES OF AMERICA,
Defendant.
ORDER
Plaintiff’s Motion for Entry of Clerk’s Default (Doc. 12) is pending before the Court.
Plaintiff asserts that she is entitled to have a default entered against Defendant the United
States of America, pursuant to Federal Rule of Civil Procedure 55(a) because the
government failed to respond to her complaint within the time allowed. The federal rules
provide that service on the government be made in the following manner:
(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 non-party 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).

Under this rule, and because the lawsuit was filed in the United States District
Court for the Middle District of Florida, Plaintiff was required to serve the U.S. Attorney for
this district. A review of the record shows that Plaintiff neither requested that a summons
be issued for the U.S. Attorney, or that a summons was served on this individual or any of
his assistants (Doc. 3; Doc. 5). The fact that Plaintiff served the “United States of
America” at the U.S. Attorney’s address is inconsequential and does not cure the problem
with Plaintiff’s attempt to effect service on the Defendant.
Therefore, because Plaintiff has failed to file proof of service to the United States
Attorney for the Middle District of Florida, her service is deemed defective and her motion
for entry of clerk’s default is DENIED.
Ordinarily, the Court would give Plaintiff 30 days to correct her error and properly
effect service on the government but here, the government has appeared and filed a
motion to dismiss (Doc. 14). Plaintiff’s response to that motion is due by April 6, 2017.
DONE and ORDERED in Orlando, Florida on March 24, 2017.

Copies furnished to:

Pro se Plaintiff

Counsel of Record

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