Yongo v. Department of the Army Et al. et al

Filing 40

ORDER denying 22 Motion for Entry of Default. The parties are reminded to read the order in its entirety for further detailed information. Signed by Senior Judge James C. Fox on 3/8/2012. Copy to plaintiff via regular mail. (Edwards, S.)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. S:1O-CV-220- F

PAUL COLLINS YONGO,
Plaintiff,

v.
UNITED STATES ARMY, et al.
Defendants.

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ORDER

This matter is before the court on the pro se Plaintiffs Motion for Entry of Default [DE­
22].

PROCEDURAL HISTORY
On May 26,2010, Paul Collins Yongo ("Yongo"), proceeding pro se, filed an
Application to Proceed in District Court Without Prepaying Fees or Costs [DE-I]. Yongo
attached a proposed Complaint [DE-I.t], a Petition for Mandatory Injunction [DE-l.2], and
proposed Summonses [DE-I.3] to the application. The caption of the proposed Complaint1 listed
the following Defendants: "Department of the Army," "Hon. Robert Gates," "Department of the
Army," "Department of Defense," and "Defense Accounting & Financial Services."2 In the body
of the proposed Complaint, Plaintiff listed the following Defendants:

1 The form proposed complaint instructs the following: "(Enter above the full name of
ALL Defendant[s] in this action. Fed. R. Civ. P. lO(a) requires that the caption of the complaint
include the names of all the parties. Merely listing one party and "et al." is insufficient. Please
attach additional sheets if necessary)." Proposed Compo [DE-I.l] at p.l.

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"Sec. John McHough [sic]" also appears in the caption, but with a strikeline through it.

(1) John McHugh, Secretary of the Army

101 Army Pentagon, Washington, D.C. 20310

(2) Department of the Treasury, Financial Management Service
P.O. Box 1686 Birmingham, AL 35201-1686
(3) J. Horne,

Defense Finance and Accounting Service, Indianapolis Center

8899 E. 56th Street, Indianapolis, Indiana, 46249

(4) Department of Defense Pentagon, Washington, DC
(5) United States of America

Proposed Compl. [DE-I. 1] at p. 2.
On November 8, 201 0, United States Magistrate Judge James E. Gates, after reviewing
the Application [DE-I] and the proposed Complaint [DE-I. 1], allowed Yongo's Application and
found that the case was not frivolous. See November 8, 2010, Order [DE-3] at p. 1. Judge Gates
did not address the Petition for Mandatory Injunction [DE-I.2] attached to the application, and
the Clerk of Court did not docket it separately in the case. Judge Gates did direct Yongo to
provide proper summonses, and directed the United States Marshal to thereafter serve the
summonses and a copy of the Complaint on Defendants.
Thereafter, Yongo provided proposed summonses addressed to the following: (1) J.
Horne, Defense Accounting & Financial Services; (2) John McHugh, Secretary of the Army, (3)
Hon. Robert Gates, Department of Defense, and (4) Hon. Timothy Geithner, Department of
Treasury. The record reveals that the Marshal served or attempted service using these
summonses, and also served then-United States Attorney George Holding with a later-issued
summons.
On May 2, 2011, Assistant United States Attorney Seth M. Wood filed a Motion to
Dismiss [DE-I9] on behalf of "Defendants." Mr. Wood did not file a Notice of Appearance as

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required by Local Civil Rule 5.2. It was not clear from the Motion to Dismiss or the supporting
memorandum [DE-20] which of the defendants Mr. Wood represents.
Two days later, Yongo filed a Motion for Entry of Default [DE-22], contending that Han.
John McHugh, J. Horne, and the Han. Timothy Geithner failed to respond to the Complaint.
In an order filed on February 8,2012 [DE-31J, the court denied the Motion to Dismiss
without prejudice. Because the record was unclear as to which Defendants had joined in the
Motion to Dismiss, the court concluded it could not rule on Plaintiff's Motion for Entry of
Default. Accordingly, the court ordered the Assistant United States Attorney to file a Notice of
Appearance stating which defendant(s) he represents in this action.
The Assistant United States Attorney filed a Notice of Appearance [DE-32], stating that
he was making an appearance on behalf ofthe United States Army; the Han. Robert Gates, in his
official capacity as the United States Secretary of Defense; the Department of Defense; and
Defense Financial and Accounting Services. He also stated that to the extent the court construes
the Complaint as naming the following individuals or entities as Defendants, he also was
noticing his appearance on their behalf: Han. John McHugh, in his official capacity of Secretary
ofthe Army; Department of the Treasury, Financial Management Service; the Han. Timothy
Geithner, in his official capacity as Secretary of the United States Department ofthe Treasury;
the United States; and J. Home, in his official capacity as a military pay technician. The Assistant
United States Attorney also filed an Opposition to Plaintiff's Motion for Default [DE-33], on all
the Defendants' behalf. Thereafter, Plaintiff filed a Reply [DE-38]. Plaintiff's Motion for Entry
of Default is now ripe.

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ANALYSIS
Generally, Rule 10(a) of the Federal Rules of Civil Procedure provides that the title of a
complaint must name all the parties to an action. "But in a pro se case when the plaintiff names
the wrong defendant in the caption or when the identity of the defendants is unclear from the
caption, courts may look to the body of the complaint to detennine who the intended and proper
defendants are." Traclnvell v. United States Gov't, 472 F.3d 1242, 1243-44 (lOth Cir.
2007)( finding that a "proper reading" of a pro se plaintiff s complaint indentifed the Clerk of the
United States Supreme Court as the defendant despite the caption only listing "United States
Government" as a defendant).
Here, a reading of the entire Complaint leads the court to conclude that Plaintiff intended
to name John McHugh, Secretary of the Anny, Department of the Treasury, Financial
Management Service; J. Horne; the Department of Defense; and the United States as Defendants
in this action. The Clerk of Court is therefore DIRECTED to update the docket to reflect that the
following are now defendants in this case, and are represented by Assistant United States
Attorney Seth Morgan Wood:
(l) the Hon. John McHugh, in his official capacity as Secretary of the Anny;
(2) Department of the Treasury, Financial Management Service;
(3) J. Horne, in his official capacity as a military pay technician;
(4) Department of Defense; and
(5) the United States.

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Nevertheless, Plaintiffs Motion for Entry of Default [DE-22] is DENIED. Both John McHugh
and J. Home are deemed to have appeared in this action, making default inappropriate. Ibe court
does not construe the Complaint as naming the Hon. Timothy Geithner as a defendant.
CONCLUSION

Plaintiff's Motion for Entry of Default [DE-22] is DENIED.
The Clerk of Court is DIRECTED to update the docket in this action to reflect that the
following are defendants in this action and are being represented by Assistant United States
Attorney Seth Morgan Wood:
1) the Hon. John McHugh, in his official capacity as Secretary of the Army;
(2) Department ofthe Treasury, Financial Management Service;
(3) J. Home, in his official capacity as a military pay technician;
(4) Department of Defense; and
(5) the United States.

The Clerk of Court is further DIRECTED to continue the management of this case.

SO ORDERED.

This the 8th day of March, 2012.

es C. Fox
enior United States District Judge

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