MedCapGroup, LLC v. Mesa Pharmacy, Inc.
ORDER that 48 Request to Clerk to Enter Default on Fourth-party Defendant Greg L. Sundem is DENIED without prejudice to Brown's ability to file a renewed motion for default that demonstrates that Sundem was properly served. Signed by Judge Jennifer A. Dorsey on 12/29/15. (Copies have been distributed pursuant to the NEF - MMM)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Praxsyn, Inc., fka Mesa Pharmacy, Inc.,
Order Denying Without Prejudice Request
for Clerk to Enter Default on Fourth-Party
Defendant Greg Sundem
AND RELATED CLAIMS
On December 22, 2015, Third-party defendant/Fourth-party plaintiff Dave Brown asked
the Clerk of Court to Enter Default against Fourth-party defendant Greg Sundem.1 Brown
represents that service was effected on Sundem on October 19, 2015, and Sundem has not pled or
otherwise appeared in this action.2 The Amended Proof of Service reflects that Sundem was
personally served with the summons and complaint by leaving those documents with “the
community security guard who denied access to” Sunden’s home in a gated community in Castle
Rock, Colorado.3 The process server’s notes state that he “left the documents at the guard shack
on the concrete blocks. The guard wouldn’t take them but said they would get forwarded to the
county.”4 The Amended Proof of Service further represents that the documents were served “Per
Nevada Revised Statute 14.090,” a supplemental method of service in Nevada that permits
service on a person living in a guard-gated community “if there is . . . [a] guard posted at the gate
Id. at 2.
and the guard denies access to the residence for service of process.”5 This Nevada statute
provides that “service of process is effective upon leaving a copy thereof with the guard.”6
Brown has not demonstrated that this Nevada method of service on this Colorado
defendant is sufficient under FRCP 4 to effectuate service of process and trigger Sundem’s
obligation to plead or otherwise defend. Assuming it could be, Brown has not demonstrated that
the process server complied with NRS 14.090 by “leaving” the documents “with the guard” nor
provided any assurances that leaving the documents “on the concrete blocks” outside this
community where the guard represented that she would send them “to the county” is reasonably
calculated to provide notice of this lawsuit to this fourth-party defendant.
Accordingly, IT IS HEREBY ORDERED that Brown’s Request to Clerk to Enter Default
on Fourth-party Defendant Greg L. Sundem [ECF 48] is DENIED without prejudice to Brown’s
ability to file a renewed motion for default that demonstrates that Sundem was properly served.
Dated this 29th day of December, 2015
__ _______ ___ _
Jennifer A. Dorsey
United States District Judge
Nev. Rev. Stat. 14.090 (1)(a).
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