Skinner et al v. Bordages et al
Filing
77
Memorandum Opinion and Order Denying Plaintiffs' 60 Motion to Quash Defendant Keith Davis' Motion to Set Aside Entry of Default and Motion To Dismiss, Denying Plaintiffs' 72 Motion for Default Judgment as to Keith Davis, and Granting Keith Davis' 54 Motion to Set Aside Entry of Default and Motion To Dismiss. Signed by District Judge Halil S. Ozerden on September 9, 2014. (NM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JESSE M. SKINNER and MANUEL
E. SKINNER JR.
v.
JOHN BORDAGES JR., CRAIG
SHOWS, JOHN HAWKINS, MARY
FORETICH, TERRY DAVIS, KEITH
DAVIS, CARLO ROBOTTI, BRIAN
MACCARTHY, TOM DEICHMANN,
BURNELL DEDEAUX, LUIS
HAWKINS, CHARLES BRANDON
MOORE, KARL WINTER, GPCH-GP,
INC., JOHN B. METCALF, ROBERT
HILLIER, TOM WHEELER, ROY
HUGH FLEMING, and JOHN/JANE
DOES 1-4
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PLAINTIFFS
CIVIL NO.: 1:13cv314-HSO-RHW
DEFENDANTS
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
MOTION TO QUASH DEFENDANT KEITH DAVIS’ MOTION TO SET ASIDE
ENTRY OF DEFAULT AND MOTION TO DISMISS, DENYING PLAINTIFFS’
MOTION FOR DEFAULT JUDGMENT AS TO KEITH DAVIS, AND
GRANTING KEITH DAVIS’ MOTION TO SET ASIDE ENTRY OF DEFAULT
AND MOTION TO DISMISS
BEFORE THE COURT is Defendant Keith Davis’ Motion to Set Aside Entry
of Default and Motion to Dismiss [54]. Plaintiffs have filed a Response [59], and
Davis has filed a Rebuttal [61]. Also before the Court is Plaintiffs Jesse M. Skinner
and Manuel E. Skinner Jr.’s Motion to Quash Defendant Keith Davis’ Motion to Set
Aside Entry of Default and Motion to Dismiss [60], to which Keith Davis has filed a
Response [62]. Plaintiffs have also filed a Motion for Default Judgment as to Keith
Davis [72]. Having considered the parties’ submissions, the record, and relevant
legal authorities, the Court is of the opinion that Defendant Keith Davis’ Motion to
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Set Aside Entry of Default and Motion to Dismiss [54] should be granted, Plaintiffs’
Motion to Quash and Motion for Default Judgment should be denied, and Plaintiffs’
claims against Defendant Keith Davis should be dismissed without prejudice.
I. BACKGROUND
On July 2, 2002, Defendant Keith Davis (“Keith Davis”) is alleged to have
participated in a “no-knock” search of structures located on Plaintiffs’ real property.
Compl. 15 [1]. Plaintiffs claim that the search was part of a conspiracy to
incarcerate Plaintiff Jesse M. Skinner (“Jesse Skinner”) and confiscate and destroy
pit bulls owned by Jesse Skinner and Plaintiff Manuel E. Skinner. Id. at 7-26. As a
result of the search, Jesse Skinner was later convicted of “various drug and assault
charges in United States v. Skinner, [Case Number] 1:02-cr-93 . . . .” Id. at vi.
On August 1, 2013, Plaintiffs filed the present Complaint. Compl. [1]. As to
Keith Davis, Plaintiffs allege he was acting as “an employee of HIDTA [(High
Intensity Drug Trafficking Area)] as a Task Force Agent[,]”advance a claim of
conspiracy, and attempt to state a claim under the Racketeer Influenced Corrupt
Organizations Act, 18 U.S.C. §§ 1961 to -1968 (“RICO”).1 Compl. 7-27 [1]. The
record reflects that Plaintiffs served Keith Davis personally on October 4, 2014.
Proof of Service [10]. The record does not indicate that Summons were either
requested or issued with respect to the United States of America. Plaintiffs
obtained a Clerk’s Entry of Default [49] as to Keith Davis on February 19, 2014.
The parties do not appear to dispute that as a member of the HIDTA Task Force, Keith Davis is
considered a federal employee. See Mem. in Supp. of Mot. to Set Aside Entry of Default and Mot. to
Dismiss 3 n.1 [55]; Pls.’ Objections and Mot. to Quash Def. Keith Davis’ Mot. to Set Aside Entry of
Default and Mot. to Dismiss 4 [59].
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Keith Davis now moves to set aside the Clerk’s Entry of Default [49] and to
dismiss Plaintiffs’ claims against him. Mem. in Supp. of Mot. to Set Aside Entry of
Default and Mot. to Dismiss 1-2 [55]. Keith Davis reasons that he should be
considered a federal employee, Plaintiffs have yet to properly serve him, and the
time for doing so has long expired. Id. at 4-8. Plaintiffs oppose Keith Davis’ Motion,
arguing that he was served personally and that Plaintiffs provided the United
States Attorney General with a document entitled “Notice of Suit.” Pls.’ Objections
and Mot. to Quash Def. Keith Davis’ Mot. to Set Aside Entry of Default and Mot. to
Dismiss 1-3 [59]. Plaintiffs have moved to quash Keith Davis’ Motion [54] on the
basis that the Assistant United States Attorney who filed Keith Davis’ Motion [54]
failed to enter a formal appearance before filing the Motion. Mot. to Quash Def.
Keith Davis’ Mot. to Set Aside Entry of Default and Mot. to Dismiss 5 [60].
Plaintiffs have also moved for a default judgment against Keith Davis. Mot. for
Default J. 1 [72].
II. DISCUSSION
A.
Legal Standard
Federal Rule of Civil Procedure 12(b)(5) permits a party to assert the defense
of insufficient service of process by motion. The provisions of Rule 4 delineate how a
party is required to serve process upon an employee of the United States. See Fed.
R. Civ. P. 4(i). Rule 4(i)(3) states that “[t]o serve a United States officer or employee
sued in an individual capacity for an act or omission occurring in connection with
duties performed on the United States’ behalf[,] . . . a party must serve the United
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States and also serve the officer or employee under Rule 4(e), (f), or (g).” Fed. R.
Civ. P. 4(i)(3). To serve the United States, a plaintiff must serve both the United
States attorney for the district where the action is brought and the Attorney
General of the United States. Fed. R. Civ. P. 4(i)(1).2 Rule 4(m) requires dismissal
of an action without prejudice if a defendant is not served within 120 days after the
complaint is filed.
B.
Analysis
1.
Plaintiffs’ Motion to Quash Keith Davis’ Motion to Set Aside Default
and Motion to Dismiss
Plaintiffs’ Motion to Quash Keith Davis’ Motion to Set Aside Default and
Motion to Dismiss [60] is not well-taken. Plaintiffs’ primary contention appears to
be that Keith Davis’ attorney, Assistant United States Attorney Stephen R. Graben
(“Graben”), did not make a formal appearance in this matter in accord with Rule 11
prior to filing the Motion to Dismiss [54] on behalf of Keith Davis. Pursuant to Rule
5 of the Local Uniform Civil Rules and this Court’s Administrative Procedures for
Electronic Case Filing, Graben properly appeared as an attorney of record at the
time he electronically signed and filed Keith Davis’ Motion [54] and identified
himself as Keith Davis’ attorney of record. See L. U. Civ. R. 5(c) (noting that the
Court’s electronic-filing procedures are found in the Administrative Procedures for
Electronic Case Filing); Administrative Procedures for Electronic Case Filing,
In lieu of serving the United States attorney, a party may deliver a copy of the summons and the
complaint to “an assistant United States attorney or clerical employee whom the United States
attorney designates in a writing filed with the court clerk—or” may “send a copy of each by
registered or certified mail to the civil-process clerk at the United States attorney’s office . . . .” Fed.
R. Civ. P. 4(i)(1)(A).
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Sections 2C (stating that an attorney’s court-issued password and identification
serves as the attorney’s signature for Rule 11 purposes), 3(D)(1) (permitted
attorneys to electronically sign documents filed with the Court). Plaintiffs’ Motion
is not well-taken and will be denied.
2.
Keith Davis’ Motion to Set Aside Default
It is undisputed that Plaintiffs have not complied with the requirements for
effective, proper service upon Keith Davis. Namely, Plaintiffs have not served the
United States with a Summons and the Complaint. See Pls.’ Objections and Mot. to
Quash Def. Keith Davis’ Mot. to Set Aside Entry of Default and Mot. to Dismiss 2
[59], Ex. “A” [59-1], Ex. “B” [59-2]. Absent proper service of process, this Court does
not have jurisdiction over Keith Davis and may not exercise power over him.
Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (citations
omitted). Good cause therefore exists to set aside the Clerk’s Entry of Default [49]
as to Keith Davis. Fed. R. Civ. P. 55(c). Keith Davis’ Motion to Set Aside Entry of
Default will be granted, and the Clerk’s Entry of Default shall be set aside.3
3.
Keith Davis’ Motion to Dismiss
Rule 4(m) allows 120 days after the filing of the complaint for service of the
complaint and summons. Fed. R. Civ. P. 4(m). That period expired in this case on
or about November 29, 2013. Rule 4(m) provides in part that “if the plaintiff shows
good cause for the failure, the court must extend the time for service for an
appropriate period.” Fed. R. Civ. P. 4(m). To establish “good cause” a plaintiff “must
The Court’s decision to grant Keith Davis’ Motion to Set Aside Entry of Default [54] necessitates
that Plaintiffs’ Motion for Default Judgment as to Keith Davis [72] be denied.
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show more than inadvertence, mistake or ignorance of the rules.” System Signs
Supplies v. United States Dept. of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990).
In opposing Keith Davis’ Motion to Dismiss, Plaintiffs state that they “are pro
se and . . . are but laymen when it comes to the fine tunings of the law and rely
heavily on the common sense interpretations thereof.” Pls.’ Objections and Mot. to
Quash Def. Keith Davis’ Mot. to Set Aside Entry of Default and Mot. to Dismiss 4
[59]. However, it is settled that “pro se litigant[s] assume[] a responsibility to learn
and follow the applicable rules of procedure. A showing of good cause requires ‘at
least as much as would be required to show excusable neglect, as to which simple
inadvertence or . . . ignorance of the rules usually does not suffice.’” Reed v. Eaton
Aerospace, No. 3:04cv971-WS, 2006 WL 82343, at *1 (S.D. Miss. Jan. 10, 2006)
(quoting Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir.
1985)). Based on the record, the Court finds that Plaintiffs have not complied with
Rule 4(m), nor have Plaintiffs demonstrated that good cause exists for their failure
to effectuate proper service of process in accordance with the Federal Rules of Civil
Procedure. Keith Davis’ Motion to Dismiss will be granted.
III. CONCLUSION
The Court concludes that the Clerk’s Entry of Default as to Keith Davis
should be set aside, Plaintiffs’ Motion for Default Judgment should be denied, and
Plaintiffs’ claims against Keith Davis should be dismissed. Accordingly,
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IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiffs’
Motion to Quash Defendant Keith Davis’ Motion to Set Aside Default and Motion to
Dismiss [60] is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that Defendant Keith
Davis’ Motion to Set Aside Entry of Default [54] is GRANTED, the Clerk’s Entry of
Default [49] shall be SET ASIDE.
IT IS, FURTHER, ORDERED AND ADJUDGED that Defendant Keith
Davis’ Motion to Dismiss [54] is GRANTED and Plaintiffs’ claims against Keith
Davis are DISMISSED WITHOUT PREJUDICE.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiffs’ Motion
for Default Judgment as to Keith Davis [72] is DENIED.
SO ORDERED AND ADJUDGED, this the 9th day of September, 2014.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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