Taylor et al v. United States Office of Personnel Management et al

Filing 36

ORDER ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO DENY PLAINTIFFS' MOTION FOR DEFAULT JUDGMENT re 24 , 26 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/22/2014. (emt, )CERTIFICATE OF SE RVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Scarlett A. Taylor and Chanel E. Taylor served by first class mail at the address of record on October 22, 2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SCARLETT A. TAYLOR, et al.,

)
)
Plaintiffs,
)
)
vs.
)
)
UNITED STATES OFFICE OF
)
PERSONNEL MANAGEMENT, et al., )
)
Defendants.
)
_____________________________ )

CIVIL NO. 14-00107 SOM/BMK
ORDER ADOPTING THE MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATION TO DENY
PLAINTIFFS’ MOTION FOR
DEFAULT JUDGMENT

ORDER ADOPTING THE MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION TO DENY
PLAINTIFFS’ MOTION FOR DEFAULT JUDGMENT
I.

INTRODUCTION.
Plaintiffs Scarlett A. Taylor and Chanel E. Taylor

(collectively, “Plaintiffs”) object to the Magistrate Judge’s
Findings and Recommendation to Deny Plaintiffs’ Motion for
Default Judgment (“F&R”).
II.

The court adopts the F&R.

FACTUAL BACKGROUND.
On March 4, 2014, Plaintiffs filed their Complaint in

this court against MetLife Insurance Company and the following
federal agencies and employees: United States Office of Personnel
Management (“OPM”); Katherine Archuleta, in her official capacity
as OPM Management Director; Patrick E. McFarland, in his official
capacity as OPM Inspector General; Timothy Watkins, in his
official capacity as Counsel to the OPM Inspector General; Hickam
Air Base OPM Office Supervisor; Cynthia Miike, in her official
capacity as Hickam Air Base OPM Agent; and Federal Employees

Group Life Insurance (“FEGLI”).

ECF No. 1.

On August 25, 2014, Plaintiffs filed a Motion for
Default Judgment seeking entry of default judgment against OPM
and certain Defendant employees of OPM, alleging that they had
failed to respond to Plaintiffs’ Complaint and Summons.

ECF No.

22, PageID # 78.
Magistrate Judge Barry M. Kurren filed his F&R on
August 26, 2014, recommending that Plaintiffs’ motion be denied
because Plaintiffs had not properly served OPM and the other
federal Defendants pursuant to Rule 4(i) of the Federal Rules of
Civil Procedure.

ECF No. 34.

On September 10, 2014, Plaintiffs filed objections to
the F&R, noting that they were not aware of the requirements in
Rule 4(i) and that they had followed the general procedure for
service.

ECF No. 26, PageID # 91-92.

Plaintiffs also assert

that OPM and the other federal Defendants could have forwarded
Plaintiffs’ Complaint and Summons to the United States Attorney
for this district and the Attorney General of the United States,
as required for proper service under Rule 4(i).

Id., PageID #

92.
III.

STANDARD.
The court reviews de novo those portions of a

Magistrate Judge’s findings and recommendation to which an
objection is made.

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b);

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Local Rule 74.2.

The district court may accept those portions of

the findings and recommendation that are not objected to if it is
satisfied that there is no clear error on the face of the record.
Stow v. Murashige, 288 F. Supp. 2d 1122, 1127 (D. Haw. 2003).
IV.

ANALYSIS.
This court agrees with the Magistrate Judge that

Plaintiffs had not properly served OPM and the other federal
Defendants at the time they sought default judgment against those
Defendants.
Under Rule 4(i)(2) of the Federal Rules of Civil
Procedure, “[t]o 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.”
To serve the United States, a party is required to:
(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

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(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).
There is no evidence in the record suggesting that
Plaintiffs had complied with Rule 4(i)(1)(A) or (B) at the time
they filed their Motion for Default Judgment.

Plaintiffs, in

fact, acknowledge in their objections to the F&R that they did
not comply with the requirements for service on federal agencies
and employees.

ECF No. 26, PageID # 91, 94.

This failure

requires the denial of Plaintiffs’ Motion for Default Judgment.
See, e.g., Schoenlein v. Frank, 1:08-CV-00503-HG-KSC, 2009 WL
650273, at *1 (D. Haw. Mar. 10, 2009) (default judgment may not
be entered when defendants have not been properly served);
Stephenson v. Lappin, No. CIV S-06-2735 LKK EFB PS, 2007 WL
1113550, at *2 (E.D. Cal. Apr. 13, 2007) (“It is axiomatic that
service of process must be effective under the Federal Rules of
Civil Procedure before a default or a default judgment may be
entered against a defendant.” (internal quotation marks
omitted)).
Whether OPM or the other federal Defendants could have
forwarded the Complaint and Summons to the United States Attorney
for this district and the Attorney General of the Untied States
is irrelevant.

Plaintiffs are responsible for effecting proper

service, and Plaintiffs cannot obtain default judgment against
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Defendants they have not properly served by asserting that others
could have accomplished the duties clearly assigned to Plaintiffs
under Rule 4(i).
V.

CONCLUSION.
Because Plaintiffs had not properly served the federal

Defendants against whom they seek default judgment at the time
Plaintiffs filed their motion, the court adopts the F&R.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 22, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Taylor, et al. v. United States Office of Personnel Management, et al., Civ.
No. 14-00107 SOM/BMK; ORDER ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION TO DENY PLAINTIFFS’ MOTION FOR DEFAULT JUDGMENT

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