Anderson v. United State Department of Agriculture et al

Filing 37

MEMORANDUM AND ORDER, The Court vacates the entry of default against the USDA and FSA (doc. 36 )and denies motions 30 MOTION for Entry of Default MOTION for Default Judgment as to filed by Mark Anderson and 33 MOTION for Entry of Default MOT ION for Default Judgment as to filed by Mark Anderson. The Court orders plaintiff Mark Anderson to show cause on or before 3/21/2014 why his failure to properly serve the USDA and FSA should not result in dismissal of his action against the USDA and FSA.Signed by Judge J. Phil Gilbert on 2/21/2014. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARK ANDERSON,
Plaintiff,
vs.

Case No. 13-cv-672-JPG-PMF

UNITED STATES DEPARTMENT OF
AGRICULTURE, ILLINOIS DEPARTMENT
OF AGRICULTURE and FARM SERVICES
AGENCY,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff Mark Anderson’s motions for default and
default judgment against defendants United States Department of Agriculture (“USDA”) and
Farm Services Agency (“FSA”) (Docs. 30 & 33). The Court notes that the Clerk of Court
entered default against the USDA and FSA on January 27, 2014 (Doc. 36).
Federal Rule of Civil Procedure 55(b)(2) allows a party to apply for judgment by default
after an entry of default has first been made. See, e.g., UMG Recordings, Inc. v. Stewart, 461 F.
Supp. 2d 837, 840 (S.D. Ill. 2006) (“Obtaining a default judgment entails two steps ... [the first
of which requires a] party seeking a default judgment ... [to] file a motion for entry of default
with the clerk of a district court by demonstrating that the opposing party has failed to answer or
otherwise respond to the complaint....”). Therein lies Anderson’s first problem. He failed to
obtain an entry of default prior to moving for default judgment.
Even if Anderson had received entry of default from the Clerk of Court prior to filing a
motion for default judgment, the Court finds service has not been properly effectuated. It

appears that plaintiff Mark Anderson did not serve the USDA in the manner required under
Federal Rule of Civil Procedure 4(i)(2) and therefore is not entitled to entry of default.
Pursuant to Rule 4(i)(2), service on a United States agency is effectuated by serving the
United States and sending a copy of the summons and complaint via registered or certified mail
to the agency. A plaintiff effectuates service on the United States by following the steps set forth
in Federal Rule of Civil Procedure 4(i)(1), which includes service upon “the United States
attorney for the district where the action is brought.” Anderson failed to follow these steps.
Accordingly, the Court VACATES the entry of default against the USDA and FSA (Doc. 36)
and DENIES Anderson’s requests for entry of default against the USDA and FSA (Docs. 30 &
33). The Court further DENIES Anderson’s motions for default judgment (Docs. 30 & 33).
The Court notes Anderson filed his complaint on July 12, 2013. Pursuant to Federal Rule
of Civil Procedure 4(m), a plaintiff must serve a defendant within 120 days of filing the
complaint. If the plaintiff fails to obtain service within that time frame, “the court – on motion or
on its own motion after notice to the plaintiff – must dismiss the action without prejudice against
that defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m).
Here, clearly more than 120 days have elapsed since Anderson filed his complaint and he has yet
to properly effectuate service on the USDA and FSA. Accordingly, the Court ORDERS
plaintiff Mark Anderson to show cause on or before March 21, 2014, why his failure to
properly serve the USDA and FSA should not result in dismissal of his action against the USDA
and FSA.
IT IS SO ORDERED.
DATED: February 21, 2014
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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