Eversole v. IRS

Filing 19

MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S MOTION FOR DEFAULT. Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff's Motion for Default 9 is DENIED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
FRANK EVERSOLE,

Case No.: 4:14-cv-00101-REB

Plaintiff,

MEMORANDUM DECISION AND
ORDER RE: PLAINTIFF’S MOTION
FOR DEFAULT

vs.
IRS,

(Docket No. 9)
Defendant.

Now pending before the Court is Plaintiff’s Motion for Default (Docket No. 9). Being
fully advised, the Court enters the following Memorandum Decision and Order:
DISCUSSION
Consistent with FRCP 12(a)(2), the parties do not dispute that Defendant’s response to
Plaintiff’s Complaint was due on or before October 24, 2014.1 Compare Mot. for Default, p. 1
(Docket No. 9), with Opp. to Mot. for Default, p. 2 (Docket No. 11); see also Fed. R. Civ. P.
12(a)(2) (“The United States, a United States agency, or a United States officer or employee
sued only in an official capacity must serve an answer to a complaint, counterclaim, or
crossclaim within 60 days after service on the United States attorney.”). Defendant filed a
motion to dismiss on October 20, 2014. See Mot. to Dismiss (Docket No. 7). Moreover,
Defendant’s attorney, Yael Bortnick, certified that she mailed the motion to dismiss to Plaintiff
via United States Postal Service on October 20, 2014. See id. at p. 4.

1

This decision assumes for these purposes, without deciding, that the “Complaint” as
framed is a sufficient statement of a claim to require a responsive pleading. Defendant has
contested that issue in its pending motion to dismiss.
MEMORANDUM DECISION AND ORDER - 1

Plaintiff alleges that he did not actually receive Defendant’s motion to dismiss until some
time after October 24, 2014 and now seeks a default judgment against Defendant, and awarded
“the full request of relief as asked in the Complaint.” Mot. for Default, p. 2 (Docket No. 9).
Plaintiff is mistaken. FRCP 5(b) details how service can be accomplished in regard to
the Motion to Dismiss filed by the Defendant. FRCP 5(b)(2)(C) prescribes that “[a] paper is
served under this rule by . . . mailing it to the person’s last known address – in which event
service is complete upon mailing.” Fed. R. Civ. P. 5(b)(2)(C) (emphasis added). Therefore, the
fact that Plaintiff may have actually received Defendant’s motion to dismiss after October 24,
2014 is immaterial to whether Defendant served its motion to dismiss on or before October 24,
2014. The record reflects that Defendant, in fact, served its motion to dismiss on October 20,
2014 – four days before the October 24, 2014 deadline – when it mailed its motion to dismiss to
Plaintiff.2
FRCP 55(a) provides that a default can be entered against a party only where that party
“has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). Here, Defendant is clearly
defending against this action by virtue of its motion to dismiss; moreover, Defendant has timely
served it motion to dismiss. See supra. Therefore, Plaintiff’s Motion for Default is without
merit and is denied.
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2

It is possible that Plaintiff is not aware of the distinction between the manner of service
required by the Rules for the initial service of a Complaint and Summons, and the subsequent
acts of service for responsive pleadings and other judicial filings.
MEMORANDUM DECISION AND ORDER - 2

ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s Motion for Default
(Docket No. 9) is DENIED.
DATED: June 25, 2015

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 3