United States of America v. Pender

Filing 8

ORDER denying 7 Motion for Entry of Default without prejudice to renew within 30 days. Signed by Peter A. Moore, Jr., Clerk of Court on 6/12/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:16-CV-276-D

UNITED STATES OF AMERICA,
Plaintiff,
V.

DARRYL L. PENDER,
Defendant.

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ORDER

This matter is before the clerk on the Motion for Entry of Default [DE-7] filed by the United
States. The motion is DENIED without prejudice.
The United States initiated this action on November 15, 2016 by filing a complaint [DE1]. Summons for Defendant Darryl L. Pender were issued that same day [DE-3]. On January 31,
2017, the court received and filed a USM-285 from the United States Marshal Service [DE-4]. In
the section on the USM-285 for instructions or information that will assist in expediting service,
the United States Attorney's Office stated: "This office has attempted to serve Mr. Pender via
certified US mail and SERVICE WAS REFUSED." In the section designated for completion by
the United States Marshal, the deputy marshal listed the date and time of the alleged service on the
defendant. The deputy marshal did not, however, mark anywhere in the certification section
stating how the defendant allegedly was served or provide any additional remarks. The declaration
of counsel for the United States [DE-7-1] filed in support of the Motion for Entry of Default relies
wholly on the incomplete USM-285. In short, the record does not contain proof showing how
Defendant Pender was served.

Rule 55 of the Federai'"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). A
defendant has no obligation to file and serve a responsive pleading until properly served. 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). Where, as here, the
United States has not made the showing of proper service on the defendant, the clerk cannot find
that entry of default is appropriate.
Accordingly, the Motion for Entry of Default [DE-7] is 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.
SO ORDERED. This the

_a_ day of June, 2017.
Peter A. Moore, Jr.
Clerk of Court

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