Weeks v. Johnson et al

Filing 44

ORDER denying 42 Motion for Entry of Default Judgment. Signed by Magistrate Judge Jeremiah C. Lynch on 6/7/2017. (TAG)

JUN 0 7 2017
Clerk, U.S Diatrict Court
District Of Montana

Missoula

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
CANDI-LEE WEEKS,

CV 16-161-M-DLC-JCL

Plaintiff,
ORDER

vs.
BRADLEY F. JOHNSON; BILL DIAL;
KRISTI CURTIS; KEVIN CONWAY;
SHANE ERICKSON; CHASE GARNER;
CHUCK STEARNS; BRIDGER KELCH;
JOHN MUHFELD; BILL HILL; and
BRIAN CARTER,
Defendants ..

Plaintiff Candi-Lee Weeks has filed a motion for entry of default judgment
as against Hills Brothers Towing. Plaintiff has not named Hills Brothers Towing
as a Defendant, however, and has instead named Bill Hill as an individual.
Because Bill Hill's default has not been entered, the Court construes Plaintiffs
motion as request for entry of default under Fed. R. Civ. P. 55(a).
Under Fed. R. Civ. P. 4(e)(l) service on an individual may be made

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pursuant to the law of the state in which the district court is located. Under
Montana Rule of Civil Procedure 4( e), an individual "must be served by either: ( 1)
delivering a copy of the summons and complaint to the individual personally; or
(2) delivering a copy of the summons and complaint to an agent authorized by
appointment or law to receive service of process." Mont. R. Civ. P. 4(d)(3)(A)
provides that a summons and complaint may be served by mailing "the following
to the person to be served: (i) a copy of the summons and complaint; (ii) two
copies of a notice and acknowledgment conforming substantially to form 18-A;
and (iii) a return envelope, postage prepaid, addressed to the sender."
Alternatively, under Fed. R. Civ. P. 4(e)(2), an individual may be served "by
doing any of the following: (A) delivering a copy of the summons and complaint
to the individual personally; (B) leaving a copy of each at the individual's
dwelling or usual place of abode with someone of suitable age and discretion who
resides there; or (C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process."
On March 23, 2017, Plaintiff filed "Proof & Declaration of Service." (Doc.
18). She has provided a Proof of Service form, indicating that a copy of the
summons was served on a person designated by law to accept service of process
on behalf of Hills Brothers Towing. (Doc. 18, at 4). She also states that she

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mailed a copy of the summons and complaint to Hills Brothers Towing and has
provided a certified mail receipt. (Doc. 18, at 2-3).
These materials are not sufficient for purposes of establishing service of
process on Bill Hill pursuant to Fed. R. Civ. P. 4(e), even to the extent it
incorporates Mon. R. Civ. P. 4(d)(3)(A) and (e). Because Plaintiff has not
established that Defendant Bill Hill was properly served in accordance with Fed.
R. Civ. P. 4(e),
IT IS ORDERED that the Clerk of Court shall not enter Bill Hill's default
until the requirements of Fed. R. Civ. P. 55(a) are satisfied. It is further ordered
that Plaintiffs motion for entry of default judgment against Hills Brothers Towing
is DENIED.
DATED this 7th day of June,

er miah C. Lynch
ited States Magistrate Judge

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