Corgan v. Nevada Department of Public Safety Investigation Division, et al

Filing 37

ORDER granting 34 Motion to Set Aside 27 Clerk's Entry of Default. Signed by Magistrate Judge William G. Cobb on 5/19/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JAMES TRACEY CORGAN,

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Plaintiff,
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vs.
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NEVADA DEPARTMENT OF PUBLIC
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SAFETY INVESTIGATION DIVISION, et al., )
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Defendants.
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_______________________________________)

3:14-cv-00692-RCJ-WGC
ORDER
re: Doc # 34

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Before the court is the “Defendant Paige’s Motion to Set Aside Default Filed March 27, 2015

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Based Upon Good Cause/Answer.” (Doc. # 34.1) Defendant Bryan Lee Paige, a pro se prisoner inmate,

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seeks an order of the court setting aside the Clerk’s Entry of Default (Doc. # 27) as against him. No

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response to the motion was filed.

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The defendant is an inmate in the Nevada Department of Corrections (NDOC). Plaintiff’s

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service was made on defendant Paige by delivering a copy of the summons and complaint upon

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defendant’s caseworker. (Doc. # 24). Helpful to understanding Defendant’s motion is the sequence of

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events relating to service of process.

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TIMELINE CONCERNING ENTRY OF DEFAULT

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The following outlines the events as they appear on the docket:

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3/6/15:

Defendant Paige’s 2/27/15 letter to the Clerk (Doc. # 20) is filed. Paige states he received
various documents delivered to him by his caseworker and wanted to ascertain if the Clerk’s
records reflected service was completed and a return of service filed. His letter was dated
2/27/15, but was not received in the Clerk’s office until 3/6/15, a Friday.

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Refers to court’s docket number.

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3/9/15:

Minute Order (Doc. # 21) ordering counsel for Plaintiff to serve the return of service (#18)
on defendant Paige. A copy of this order was not sent to Defendant Paige as he had not yet
appeared in the action.

3/17/15:

Plaintiff’s attorney files a certificate of service and notice of compliance with the court’s
3/9/15 order. (Doc. # 23). The notice reflects the summons and complaint “was physically
served upon BRYAN PAIGE on February 23, 2015 by a prison caseworker who agreed to
receive and serve the same.” (Id). Attorney Corn simultaneously files a 3-Day Notice of
Intent to Enter Default (Doc. # 24).

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3/26/15:

Plaintiff files a Request for Clerk to Enter Default as against Defendant Paige. (Doc. # 26.)

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3/27/15:

Clerk enters Default as to Defendant Paige. (Doc. # 27).

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4/2/15:

Defendant Paige files Answer to Complaint. (Doc. # 29). His answer is dated 3/30/15 and
served the same day. Selected exhibits which were referred to in footnote 1 appearing on
page 1, include:

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A: Envelope from attorney Corn addressed Paige which was received by Paige on 2/24/15,
with enclosed document entitled “Summons Returned Executed” which reflects the case
worker received service on behalf of plaintiff on 2/23/14.

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B. Paige’s letter to the Clerk dated 2/27/15. (Doc. # 20.)

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C. Envelope from Attorney Corn’s mailed to Lovelock Correctional Center, “Attn: Jeri
Lynn” postmarked 1/28/15; There is a note on the envelope that Defendant Paige
received same “from Caseworker in Unit 5A-SLP” on 2/26/15.

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DISCUSSION

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Fed. R. Civ. P. 4(e) provides, in pertinent part, as follows:

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(e) Serving an Individual Within a Judicial District of the United States. Unless
federal law provides otherwise, an individual...may be served in a judicial district of the
United States by:

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(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

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(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual
personally;

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(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

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(C) delivering a copy of each to an agent authorized by appointment or
by law to receive service of process.

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(emphasis added.)
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Plaintiff’s service of process on Defendant Paige is potentially defective in that under either state

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or federal procedures, it was not personally delivered to the Defendant. There is also an issue whether

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the summons was left with someone of suitable age who resides at Defendant Paige’s abode because

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the NDOC caseworker may not have been an agent authorized by appointment or by law to receive

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service of process. Because Plaintiff has not opposed the motion, Plaintiff makes no argument in this

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regard as to whether service on an NDOC caseworker satisfies either Fed. R. Civ. P. 4(e)(2) or Nev. R.

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Civ. P. 4, the provisions in which essentially parallel Federal Rule 4.

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Fed. R. Civ. P. 55 (c) provides that a default may be set aside for good cause. The preference

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of federal jurisprudence is to have cases tried on their merits. U.S. v Signed Personal Check No. 730 of

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Yuban S. Mesle, 615 F. 2d 1085, 1091 (9th Cir. 2010). Defendant has answered the complaint and sets

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forth various defenses. (Doc. # 29). Coupled with the questionable service on Defendant’s caseworker,

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the court finds there is good cause to set aside the default as to Defendant Paige.

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Additionally, Local Rule 7-2(d) provides that the failure of an opposing party to file points and

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authorities in response to any motion shall constitute a consent to the granting of the motion. As noted

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above, Plaintiff has not opposed Defendant’s motion.

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Defendant’s motion to set aside the default (Doc. # 34) is GRANTED.

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IT IS SO ORDERED.

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DATED: May 19, 2015.

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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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