Vargas-Puerta v. United States Department of Homeland Security et al

Filing 14

OPINION AND ORDER denying 12 Motion for Clerks Entry of Default. No later than November 19, 2021, Plaintiff shall perfect service on Defendants in accordance with Federal Rule of Civil Procedure 4(i) and file proof of such service. Failure to do so may result in dismissal of this case for failure to prosecute. Signed by Judge Michael L. Brown on 10/4/2021. (dob)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
Juan Vargas-Puerta,
Plaintiff,
Case No. 1:20-cv-5104-MLB

v.
United States Department of
Homeland Security, et al.,
Defendants.
________________________________/

OPINION & ORDER
This

matter

comes

before

the

Court

on

Plaintiff

Juan

Vargas-Puerta’s motion for clerk’s entry of default. (Dkt. 12.) The Court
denies the motion.1

In general, entry of default is within the purview of the clerk, as
explicitly contemplated by Federal Rule of Civil Procedure 55(a). See
Fed. R. Civ. P. 55(a) (directing the “clerk” to enter a default when a party
“fail[s] to plead or otherwise defend, and that failure is shown by affidavit
or otherwise”). That said, “courts and commentators alike have held that
a court also may enter a party’s default.” See Wilson v. Kelly, No. 1:18CV-5014-AT, 2019 WL 5485126, at *1–2 (N.D. Ga. Apr. 10, 2019) (quoting
FHL, Inc. v. Walker, No. 2:13 CV 555, 2016 WL 868225, at *2 (M.D. Ala.
Mar. 7, 2016)); see also City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d
114, 128 (2d Cir. 2011) (“Although Rule 55(a) contemplates that entry of
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I.

Background
On December 16, 2020, Plaintiff sued Defendants United States

Department of Homeland Security (“DHS”); Chad Wolf, Secretary of
DHS; United States Citizenship and Immigration Services (“USCIS”);
Ken Cuccinelli, Director of USCIS; and Shineka Miller, Field Office
Director of the USCIS Atlanta Field Office. (Dkt. 1.) On July 19, 2021,
the Court entered an order, directing Plaintiff to file, on or before August
2, 2021, proof that service was properly made or why Plaintiff had been
unable to serve Defendants. (Dkt. 11.) On July 29, 2021, Plaintiff moved
for clerk’s entry of default. (Dkt. 12.)
II.

Standard of Review
The Federal Rules of Civil Procedure provide for the entry of a

clerk’s default if a defendant fails to timely respond to a complaint
seeking affirmative relief. Fed. R. Civ. P. 55(a). If, however, the plaintiff

default is a ministerial step to be performed by the clerk of court, . . . a
district judge also possesses the inherent power to enter a default.”);
Fisher v. Taylor, 1 F.R.D. 448, 448 (E.D. Tenn. 1940) (“[T]he court has
[the] power to enter an order of default and Rule 55 is not a limitation
thereof.”); 10A Wright & Miller, Federal Practice & Procedure § 2682 (4th
ed. 2021) (“The fact that Rule 55(a) gives the clerk authority to enter a
default is not a limitation on the power of the court to do so.”).
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has failed to properly serve the defendant with process, then the plaintiff
is not entitled to the entry of a default despite the defendant’s failure to
timely respond. See Onpower, Inc. v. United Power Line Contractors,
LLC, No. 2:15-cv-796-FtM-99MRM, 2016 WL 9049315, at *2 (M.D. Fla.
Mar. 14, 2016) (“While Defendants have failed to file any documents in
this case or otherwise defend this action as required by Rule 55(a), absent
a showing by Plaintiffs that they properly effectuated service of process,
an entry of default by the Clerk is not appropriate against
Defendant . . . .” (internal citation omitted)); 10A Wright & Miller,
Federal Practice & Procedure § 2682 (4th ed. 2020) (“Before a default can
be entered, the court must have subject-matter jurisdiction and
jurisdiction over the party against whom the judgment is sought, which
also means that the party must have been effectively served with
process.” (footnote omitted)). When seeking a default, the plaintiff bears
the burden of establishing proper service of process. Onpower, 2016 WL
9049315, at *1.
III. Discussion
According to Plaintiff, electronic summons were issued on
December 16, 2020, and he served paper copies of the complaint upon

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Defendants via certified United States Postal Service (“USPS”) mail on
January 4, 2021. (Dkt. 12 at 2–3.) As proof, Plaintiff attached (1) an
automatic email reply from USCIS stating, among other things, “If this
email contains a summons or a complaint against the [USCIS] or its
personnel in their official capacity, you have sent your message to the
correct mailbox and your message has been received”; (2) an automatic
email reply from the Office of General Counsel for DHS providing the
address for service of process; and (3)

five USPS tracking numbers

showing “delivered” on January 4th in “Washington, DC.” (See Dkt.
12-1.)
Federal Rule of Civil Procedure 4(i)(2) governs 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 or certified mail to the agency, corporation,
officer, or employee” being sued. Fed. R. Civ. P. 4(i)(2). The Court finds
Plaintiff failed to comply with either requirement. 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
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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.
Fed. R. Civ. P. 4(i)(1). Nothing in the record indicates Plaintiff served
the United States under Rule 4(i)(1), as required by Rule 4(i)(2). This
alone is enough to deny Plaintiff’s motion. See McGinnis v. Atlanta VBA
Reg’l Off., No. 1:18-CV-762-SCJ, 2018 WL 7075145, at *1 (N.D. Ga. Nov.
15, 2018) (denying motion for clerk’s entry of default where the plaintiff
had not established that he served the United States).
Plaintiff also did not comply with the second requirement of Rule
4(i)(2). Service by certified mail requires the addressee or his authorized
agent to sign the return receipt. See Fuqua v. Turner, 996 F.3d 1140,
1155 (11th Cir. 2021) (“Certified mail is ‘mail for which the sender
requests proof of delivery in the form of a receipt signed by the

5

addressee.’” (quoting Certified Mail, Black’s Law Dictionary (11th ed.
2019))); Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1057 (2019)
(same). Plaintiff claims to have mailed the documents by certified mail,
but he did not provide return receipts—let alone ones with signatures.
See Fuqua, 996 F.3d at 1155 (examining the return receipt, finding “no
trace of a signature,” and concluding “that deficiency alone renders
service inadequate”). And while there is tracking information in the
record that states “Washington, DC” and “delivered,” there is nothing to
show that the mail was addressed to Defendants. (Dkt. 12-1 at 4–8.)
Plaintiff has thus failed to effect service of process. Without proof
of proper service, the Court lacks jurisdiction over Defendants, and the
requirement that Defendants respond to the complaint has not been
triggered.

McGinnis, 2018 WL 7075145, at *1 (explaining that the

requirement that the defendant respond to the complaint is not triggered
when the plaintiff fails to comply with Rule 4). Plaintiff’s motion is thus
denied. See Barbosa v. Hum. Res. Off. DoDEA, No. 3:19-cv-1185-HESJRK, 2021 WL 2258332 (M.D. Fla. June 3, 2021) (denying motion for
clerk’s entry of default due to improper service); David v. Ky. Child

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Support Agency, No. 8:19-cv-2591-T-36JSS, 2021 WL 2404244 (M.D. Fla.
Feb. 24, 2021) (same).
IV.

Conclusion
The Court DENIES Plaintiff’s motion for clerk’s entry of default

(Dkt. 12). No later than November 19, 2021, Plaintiff shall perfect service
on Defendants in accordance with Federal Rule of Civil Procedure 4(i)
and file proof of such service. Failure to do so may result in dismissal of
this case for failure to prosecute.
SO ORDERED this 4th day of October, 2021.

(1

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MICH"K E L L. B R O W N

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