Mendez v. Mascoutah Il et al

Filing 20

MEMORANDUM AND ORDER, granting 19 MOTION to Set Aside Default Entry By Clerk filed by Cody Hawkins. Signed by Judge J. Phil Gilbert on 11/19/2015. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RUDY MENDEZ, independent personal
representative and heir to the Estate of Hazel
Dean Hitt,,
Plaintiff,

Case No. 15-cv-382-JPG-PMF

v.
CITY OF MASCOUTAH, IL, CODY
HAWKINS, MASCOUTAH POLICE
DEPARTMENT and UNKNOWN PARTIES,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on defendant Cody Hawkins’ motion to set aside the default
on the grounds that service on him was not accomplished by the United States Marshal (Doc. 19).
Hawkins notes that the Court’s August 7, 2015, order recognized that the Court must order service of
process by a United States Marshal or Deputy Marshal for a plaintiff allowed to proceed in forma
pauperis. Fed. R. Civ. P. 4(c)(3). However, the Court’s order simply meant that if plaintiff Rudy
Mendez wished the United States Marshal Service (“USMS”) to serve process for him, he could fill in
the appropriate forms for service, provide the appropriate copies, turn them in to the USMS, and the
USMS must then perform the service. However, Mendez was still free to arrange service on his own by
“[a]ny person who is at least 18 years old and not a party,” Fed. R. Civ. P. 4(c)(2), as he apparently did in
this case. More importantly, so long as the service was accomplished by a non-party at least 18 years
old, the identity of the process server will not excuse the served defendant from his obligation to answer
or otherwise respond to the complaint.
Nevertheless, because there was some confusion about the Court’s order appointing an agent for
service, the Court finds there is good cause for the default. Furthermore, Hawkins has taken quick
action to correct the default, and there is no indication he lacks a meritorious defense to the complaint.

Accordingly, setting aside the default is warranted. See Pretzel & Stouffer v. Imperial Adjusters, 28
F.3d 42, 45 (7th Cir. 1994); O’Brien v. R.J. O’Brien & Assocs., 998 F.2d 1394, 1401 (7th Cir. 1993);
United States v. Di Mucci, 879 F.2d 1488, 1495 (7th Cir. 1989). The Court therefore GRANTS the
motion to vacate default (Doc. 19), VACATES the entry of default against Hawkins (Doc. 17), and
ORDERS that Hawkins shall have 20 days from the entry of this order to file an answer or otherwise
respond to the complaint.
The Court further feels it would be helpful to explain to Mendez, who is proceeding pro se, why
entry of default was denied as to defendants City of Mascoutah and Mascoutah Police Department. The
return of service was completed showing that the method of service of process on an individual was
used, but the City of Mascoutah and Mascoutah Police Department are local government entities, not
individuals. Thus, they must be served in accordance with Federal Rule of Civil Procedure 4(j)(2) or
735 ILCS 5/2-211, and the return of service must reflect such service on the appropriate municipal
representative. However, because it appears Mendez has made a good faith effort to serve the
municipal defendants, the Court finds good cause for extending the deadline for service to 45 days from
entry of this order. See Fed. R. Civ. P. 4(m); Coleman v. Milwaukee Bd. of Sch. Directors, 290 F.3d
932, 934 (7th Cir. 2002). It remains true that if Mendez wishes the USMS to serve process on any
defendant, he may provide to the USMS the summons issued in this case, the appropriately completed
USM-285 forms and sufficient copies of the complaint for service, and the USMS will serve the
defendants as directed in the Court’s August 7, 2015, order.
IT IS SO ORDERED.
DATED: November 19, 2015
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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