United States of America v. Alliance Mechanical, Inc. et al

Filing 32

ORDER that 29 Motion for Entry of Clerks Default is DENIED. FURTHER ORDERED that the above-captioned case is DISMISSED without prejudice as to defendant Alliance/Penta. Signed by Judge James C. Mahan on 2/7/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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THE UNITED STATES OF AMERICA
for the use of BOMBARD
MECHANICAL, LLC,

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2:12-CV-1088 JCM (CWH)

Plaintiff(s),

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v.

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ALLIANCE MECHANICAL, INC., et
al.,

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Defendant(s).

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ORDER

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Presently before the court is plaintiff United States’ motion for entry of clerk’s default, (doc.

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#29) against defendant Alliance/Penta, a joint venture (“defendant Alliance/Penta”).

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I.

Background

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On June 25, 2012, plaintiff filed its complaint. (Doc. #1). On September 17, 2012, plaintiff

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filed a motion seeking an enlargement of time to serve defendant and to serve defendant

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Alliance/Penta by way of publication. (Docs. #16, #17). Both of these motions were granted by the

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magistrate judge.1 (Doc. #18).

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In conjunction with the instant motion, plaintiff’s counsel filed an affidavit swearing that

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service by publication was issued upon defendant Alliance/Penta on five separate dates and that more

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James C. Mahan
U.S. District Judge

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The magistrate judge granted a 60-day extension to complete service under Fed.R.Civ.P. 4, extending the
deadline to December 24, 2012. (Doc. #18, 4:3-4).

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than 21 days had elapsed without a response. (Doc. #29, 2:1-7).

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II.

Legal Standard

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“When a party against whom a judgment for affirmative relief is sought has failed to plead

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or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the

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party’s default.” FED. R. CIV. P. 55(a). A motion is not necessary.

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However, in order to show that clerk’s default is appropriate, proof of service by publication

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is required and must comply with Nev.R.Civ.P. 4(g)(3)-(4).2 See FED.R.CIV.P. 4(h)(1)(a); (see doc.

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#18, 3:2-27).

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III.

Discussion

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Here, plaintiff is asking for entry of clerk’s default. However, its proof of service by

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publication is insufficient. See NEV.R.CIV.P. 4(g)(3). The aforementioned affidavit from the

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plaintiff’s attorney is not adequate. (Doc. #29).3 Provided that plaintiff has failed to provide proper

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proof of service and the deadline to do so has expired, defendant Alliance/Penta is dismissed under

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Fed. R. Civ. P. 4.4

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IV.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for entry

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of clerk’s default (doc. #29) be, and the same hereby is, DENIED.

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...

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...

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Rules 4(g)(3)-(4) of the NRCP require that: “(3) In case of publication, the affidavit of the publisher, foreman
or principal clerk, or other employee having knowledge thereof, showing the same, and an affidavit of a deposit of a copy
of the summons in the post office, if the same shall have been deposited; or, (4) The written admission of the defendant.”
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Rather, an “affidavit of the publisher, foreman or principal clerk, or other employee having knowledge thereof,
showing the same,” was required. NEV.R.CIV.P. 4(g)(3).
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James C. Mahan
U.S. District Judge

Federal Rule of Civil Procedure 4(m) requires that, “[i]f a defendant is not served within 120 days after the
complaint is filed, the court—on motion or on its own after notice to the plaintiff– must dismiss the action without
prejudice against that defendant or order that service be made within a specified time.”

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IT IS FURTHER ORDERED that the above-captioned case be, and the same hereby is,
DISMISSED without prejudice as to defendant Alliance/Penta.
DATED February 7, 2013.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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