MedCapGroup, LLC v. Mesa Pharmacy, Inc.

Filing 49

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)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Medcapgroup, LLC,

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Plaintiff

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v.

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Praxsyn, Inc., fka Mesa Pharmacy, Inc.,

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Order Denying Without Prejudice Request
for Clerk to Enter Default on Fourth-Party
Defendant Greg Sundem

Defendant

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2:14-cv-01864-JAD-GWF

_____________________________________

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[ECF 48]

AND RELATED CLAIMS

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On December 22, 2015, Third-party defendant/Fourth-party plaintiff Dave Brown asked

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the Clerk of Court to Enter Default against Fourth-party defendant Greg Sundem.1 Brown

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represents that service was effected on Sundem on October 19, 2015, and Sundem has not pled or

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otherwise appeared in this action.2 The Amended Proof of Service reflects that Sundem was

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personally served with the summons and complaint by leaving those documents with “the

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community security guard who denied access to” Sunden’s home in a gated community in Castle

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Rock, Colorado.3 The process server’s notes state that he “left the documents at the guard shack

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on the concrete blocks. The guard wouldn’t take them but said they would get forwarded to the

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county.”4 The Amended Proof of Service further represents that the documents were served “Per

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Nevada Revised Statute 14.090,” a supplemental method of service in Nevada that permits

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service on a person living in a guard-gated community “if there is . . . [a] guard posted at the gate

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ECF 48.

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Id.

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ECF 45.

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Id. at 2.

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and the guard denies access to the residence for service of process.”5 This Nevada statute

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provides that “service of process is effective upon leaving a copy thereof with the guard.”6

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Brown has not demonstrated that this Nevada method of service on this Colorado

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defendant is sufficient under FRCP 4 to effectuate service of process and trigger Sundem’s

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obligation to plead or otherwise defend. Assuming it could be, Brown has not demonstrated that

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the process server complied with NRS 14.090 by “leaving” the documents “with the guard” nor

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provided any assurances that leaving the documents “on the concrete blocks” outside this

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community where the guard represented that she would send them “to the county” is reasonably

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calculated to provide notice of this lawsuit to this fourth-party defendant.

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Accordingly, IT IS HEREBY ORDERED that Brown’s Request to Clerk to Enter Default

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on Fourth-party Defendant Greg L. Sundem [ECF 48] is DENIED without prejudice to Brown’s

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ability to file a renewed motion for default that demonstrates that Sundem was properly served.

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Dated this 29th day of December, 2015

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_______________________________
_______________________
__ _______ ___ _
Jennifer A. Dorsey
nifer Dorsey
e
r
United States District Judge
ted States
ta e
Judge
u

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Nev. Rev. Stat. 14.090 (1)(a).

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Id.
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