Singer v. Department of the Air Force

Filing 8

ORDER that 7 Motion for Entry of Clerk's Default is DENIED. Signed by Judge Andrew P. Gordon on 2/1/17. (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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***

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JAY SINGER,

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Case No. 2:16-cv-02681-APG-GWF
Plaintiff,

v.
DEBORAH LEE JAMES, SECRETARY,
DEPARTMENT OF THE AIR FORCE OF
THE UNITED STATES,

ORDER DENYING MOTION FOR
ENTRY OF CLERK’S DEFAULT
(ECF No. 7)

Defendant.

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Plaintiff Jay Singer filed suit against Deborah Lee James, Secretary of the Department of

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the Air Force, for age discrimination. ECF No. 1. He attempted service by sending certified mail

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to Andrews Air Force Base in Maryland. ECF No. 6. Singer moves for entry of clerk’s default

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because the defendant has not answered or otherwise responded. ECF No. 7.

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Singer is not entitled to an entry of default because he has not shown proper service.
Under Federal Rule of Civil Procedure 4(i)(1), a party serving the United States must:
(A)(i) deliver a copy of the summons and of the complaint to the United States
attorney for the district where the action is brought--or to an assistant United States
attorney or clerical employee whom the United States attorney designates in a
writing filed with the court clerk--or
(ii) send a copy of each by registered or certified mail to the civil-process
clerk at the United States attorney’s office;
(B) send a copy of each by registered or certified mail to the Attorney General of
the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the United
States, send a copy of each by registered or certified mail to the agency or officer.

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Under Rule 4(i)(2), to “serve a United States agency or corporation, or a United States officer or

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employee sued only in an official capacity, a party must serve the United States and also send a

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copy of the summons and of the complaint by registered or certified mail to the agency,

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corporation, officer, or employee.” Finally, under Rule 4(i)(3), to “serve a United States officer

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or employee sued in an individual capacity for an act or omission occurring in connection with

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duties performed on the United States’ behalf (whether or not the officer or employee is also sued

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in an official capacity), a party must serve the United States and also serve the officer or

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employee under Rule 4(e), (f), or (g).”

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There is no indication that Singer served the United States Attorney for the District of

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Nevada or the Attorney General of the United States. Thus, Singer has not shown proper service

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under Rule 4(i)(1). Moreover, it is unclear from the complaint whether defendant James is sued

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in her official capacity, her individual capacity, or both, and thus it is not clear that service has

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been properly accomplished under Rule 4(i)(2) or (3).

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IT IS THEREFORE ORDERED that plaintiff Jay Singer’s motion for entry of clerk’s
default (ECF No. 7) is DENIED.
DATED this 1st day of February, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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