Pathak v. Fuller et al

Filing 17

ORDER that 7 , 9 , and 10 Motions for Entry of Clerks Default are DENIED. Signed by Judge James C. Mahan on 12/13/2017. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

ANSHU BHARAT PATHAK,

8
9
10

Case No. 2:17-CV-1571 JCM (VCF)
Plaintiff(s),

ORDER

v.
CHRIS FULLER, et al.,

11

Defendant(s).

12
13

Presently before the court is plaintiff Anshu Pathak’s motion for entry of clerk’s default

14

against defendant Chris Fuller. (ECF No. 7). Defendant filed a response (ECF No. 11), to which

15

plaintiff replied (ECF No. 12).

16
17
18
19

Also before the court is plaintiff’s motion for entry of clerk’s default against defendant
Meatmansteaks.com. (ECF No. 9).
Also before the court is plaintiff’s motion for entry of clerk’s default against defendant the
Saint Petersburg Company. (ECF No. 10).

20

I.

21

On June 5, 2017, plaintiff filed a complaint against Chris Fuller, meatmansteaks.com, and

22

Background

the Saint Petersburg Company. (ECF No. 1).

23

On June 22, 2017, plaintiff filed with the court a notice of “summons returned executed.”

24

(ECF No. 6). The notice contains three affidavits of service, one as to each defendant. Id. Each

25

affidavit states that the process server attempted to serve defendant Fuller as an individual and as

26

a representative for meatmansteaks.com and the Saint Petersburg Company. Id. The process

27

server attempted to serve Fuller at his house, and at least one time attempted to serve all three

28

defendants at their shared company office address. Id. When attempts at personal service failed,

James C. Mahan
U.S. District Judge

1

“legal process was posted on front door [of Fuller’s personal residence] per client instructions” as

2

to all three defendants. Id.

3

II.

4

Federal Rule of Civil Procedure 4 governs service of a summons. In relevant part, Rule 4

5
6
7
8
9
10
11
12
13
14

Discussion

provides,
(e) Serving an Individual . . . . Unless federal law provides otherwise, an individual-other than a minor, an incompetent person, or a person whose waiver has been
filed--may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts
of general jurisdiction in the state where the district court is located or where
service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the 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.
Fed. R. Civ. P. 4.
Nevada Rule of Civil Procedure 4 provides, in relevant part,

15
16
17
18
19
20
21

(d) Summons: Personal Service. The summons and complaint shall be served
together. The plaintiff shall furnish the person making service with such copies as
are necessary. Service shall be made by delivering a copy of the summons attached
to a copy of the complaint as follows:
(6) Service Upon Individuals. . . . [T]o the defendant personally, or by
leaving copies thereof at the defendant’s dwelling house or usual place of
abode with some person of suitable age and discretion then residing therein,
or by delivering a copy of the summons and complaint to an agent
authorized by appointment or by law to receive service of process.
Nev. R. Civ. P. 4.
Florida law provides a similar rule for service of process,

22
23
24
25

(1)(a) Service of original process is made by delivering a copy of it to the person to
be served with a copy of the complaint, petition, or other initial pleading or paper
or by leaving the copies at his or her usual place of abode with any person residing
therein who is 15 years of age or older and informing the person of their
contents. . . .
Fla. Stat. § 48.031(1)(a).

26
Here, plaintiff has not effectuated proper service of process on defendants. Neither federal
27
nor state law applicable to this case permit service of process for this type of action by posting
28
James C. Mahan
U.S. District Judge

-2-

1

legal process on defendant Fuller’s front door. As such, the court will deny plaintiff’s motions for

2

entry of clerk’s default.

3

Accordingly,

4

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

5
6
7
8
9
10
11
12

entry of clerk’s default (ECF No. 7) be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for entry of clerk’s default (ECF No.
9) be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for entry of clerk’s default (ECF No.
10) be, and the same hereby is, DENIED.
DATED December 13, 2017.
__________________________________________
UNITED STATES DISTRICT JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge

-3-