Camden County et al v. Northeastern Community Development Corporation et al

Filing 30

ORDER denying 28 Motion for Entry of Default and 29 Motion for Entry of Default - Counsel should read attached Order in its entirety for critical information. Signed by Julie Richards Johnston, Clerk of Court on 10/29/2015. (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:15-CV-21-D
CAMDEN COUNTY, A BODY POLITIC
AND POLITICAL SUBDIVISION OF THE
STATE OF NORTH CAROLINA; EAST
CAROLINA BEHAVIORIAL HEALTH,
AN AREA MENTAL HEALTH
AUTHORITY AND POLITICAL
SUBDIVISION OF THE STATE OF
NORTH CAROLINA; and PASQUOTANK
COUNTY, A BODY POLITIC AND
POLITICAL SUBDIVISION OF THE
STATE OF NORTH CAROLINA,

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Plaintiffs,

ORDER

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v.

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NORTHEASTERN COMMUNITY
DEVELOPMENT CORPORATION;
UNITED STATES DEPARTMENT OF
AGRICULTURE; UNITED STATES
INTERNAL REVENUE SERVICE;
NORTH CAROLINA DEPARTMENT OF
REVENUE; NORTH CAROLINA
DEPARTMENT OF COMMERCEDIVISION OF EMPLOYMENT
SECURITY; SOUTHERN BANK AND
TRUST COMPANY,
Defendants.

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This matter is before the undersigned on the Motions for Entry of Default [DE-28; DE29] filed by Plaintiffs, requesting that the court enter default as to Defendants Northeastern
Community Development Corporation and Southern Bank and Trust Company. For the reasons
stated below, the motions are DENIED without prejudice.
Rule 55 ofthe Federal Rules of Civil Procedure provides: "When a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure

is shown by affidavit or otherwise, the clerk must enter the party's default." Fed. R. Civ. P.
55(a). Here, Plaintiffs contend that entry of default is appropriate to Defendants Northeastern
Community Development Corporation and Southern Bank and Trust Company because these
defendants have "failed to plead" or are "otherwise subject to Default Judgment as provided by
the Federal Rules of Civil procedure or by statute." Mot. for Entry of Default [DE-29] at 2.
Plaintiffs are correct that neither Northeastern Community Development Corporation nor
Southern Bank and Trust Company have filed an answer or otherwise appeared in this action in
this court. Plaintiffs have not, however, shown by affidavit or otherwise that either defendant
was properly served. Without being properly served, neither defendant has an obligation to file
an answer or appear in this action. See Maryland State Firemen's Ass 'n v. Chaves, 166 F.R.D.
353, 354 (D. Md. 1996) ("It is axiomatic that service of process must be effective under the
Federal Rules of Civil Procedure before a default or a default judgment may be entered against a
defendant."), Henderson v. Los Angeles Cnty. No. 5:13-CV-635-FL, 2013 WL 6255610, at *1
(E.D.N.C. Dec. 4, 2013) (explaining that "a defendant's duty to respond to a complaint only
arises upon proper service of process" and therefore a "plaintiff must show, by affidavit or
otherwise, that proper service of process has been effected before default may be entered"); see
also Fed. R. Civ. P. 12(a)(l)(A).
Here, the record contains no proof of service as required by Fed. R. Civ. P. 4(1).
Accordingly, Plaintiffs' Motions for Entry of Default [DE-28; DE-29] are DENIED without
prejudice to renew within 30 days. Any new motion for entry of default must be supported by
proof of service as mandated by the Federal Rules of Civil Procedure.

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23rd
29th
SO ORDERED. This the_ day of October, 2015.

~
lie Richards Johnston
Clerk of Court

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