STATE FARM GUARANTY INSURANCE COMPANY v. ROJAS et al
Filing
12
MEMORANDUM OPINION/ORDER granting 10 Motion to Set Aside Default; that the cmp. is DISMISSED. Signed by Judge William H. Walls on 10/15/14. (DD, )
NOT FOR PUBLICATION
CLOSE
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STATE FARM GUARANTY INSURANCE
COMPANY, as subrogee of KEISHA
DRAKE,
Plaintiff,
v.
MEMORANDUM OPINION
AND ORDER
:
Civ. No. 13-4934 (WHW)
JOSE L. ROJAS, UNiTED STATES
POSTAL SERVICE, JOHN DOES (1-10)
FICTITIOUS NAMES, and ABC
COMPANIES (1-10) FICTITIOUS NAMES,
Defendants.
Wallsg Senior District Judge
Plaintiff filed the instant complaint on August 15, 2013, alleging that Defendant Jose
Rojas (“Rojas”) drove a postal truck into the open door of Plaintiff’s parked car. ECF No. 1.
Rojas was an employee of Defendant United States Postal Service at the time. Compl. at ¶4.
Plaintiff requested default against all Defendants on May 22, 2014, and the Clerk of Court
entered default the same day. ECF Nos. 8-9. The United States attorney for this district was
never served with a copy of the summons and complaint, Decl. of Pamela Perron, ECF No. 10-2
at ¶J 1-3. Defendants now move to set aside the Clerk’s entry of default, and to dismiss the
complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. l2(b)(1) and insufficient
service of process under Fed. R. Civ. P. 4(i), 4(m) and l2(b)(2). ECF No. 10. Defendants’
unopposed motion, decided without oral argument under Fed. R. Civ. P. 78, is granted.
The Federal Tort Claims Act (FTCA) does not permit suits against federal agencies in
their own names, or against federal employees acting within the scope of their employment; the
only proper defendant is the United States. 28 U.S.C. 2679; see also, e.g., Kieffer v. Vilk, 8 F.
NOT FOR PUBLICATION
CLOSE
Supp. 2d 387, 39394 (D.N.J. 1998) (citing Schrob
V.
Catterson, 967 F.2d 929, 934 (3d Cir.
1992)). Plaintiff did not name the United States as a defendant, and the FTCA does not grant the
Court jurisdiction over any of the named Defendants. As Plaintiff pleads no other basis for
jurisdiction besides the FTCA,’ the complaint must be dismissed for lack of subject matter
jurisdiction.
A court may set aside an entry of default for good cause. Fed. R. Civ, P. 55(c). “A default
judgment cannot be entered on a complaint that has not been validly served.” Smith v. Rebstock,
477 F. App’x 884, 885 (3d Cir. 2012), cert, denied, 133 S. Ct. 2358 (2013). In order to serve the
United States, its agencies or employees, a party must deliver a copy of the summons and
complaint to the United States attorney for the district where the action is brought. Fed. R. Civ.
P. 4(i). Because Plaintiff did not properly serve the United States in this action, the Clerk’s entry
of default must be vacated.
th
It is therefore on this 1 5 day of October, 2014,
ORDERED that the Clerk’s entry of default against the United States in the abovecaptioned matter is set aside; and it is further
I
/
ORDERED that the complaint is dismissed.
/
Unit’Ss Seni6i District Judge
Plaintiff alleges that “this Court has original jurisdiction by way of 28 U.S.C. § 1348, in that the
United States Government is a defendant.” Compl. at ¶ 7. In fact, 28 U.S.C. § 1348 invests
district courts with original jurisdiction over a civil action by the United States against any
national banking association. Because of the subject matter of the complaint, the Court interprets
it as citing 28 U.S.C. § 1346, the Federal Tort Claims Act. See Boarhead Corp. v. Erickson, 923
F. 2d 1011, 1018 (3d Cir. 1991) (citing Wright & Miller, 5 Fed. Prac. & Proc. Civ. at § 1210)
(“[a] reference to the wrong statute or an erroneous basis ofjurisdiction will be corrected by the
court if it can determine the appropriate statute or jurisdictional source from the complaint.”).
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?