COOPER v. STANBACK

Filing 10

ORDER, MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 05/02/2014; that Plaintiff's motions (Docket Entries 6 , 8 ) for entry of default and default judgment be DENIED. O RDERED that the Clerk shall reissue the summons as to Defendant Stanback. FURTHER that the United States Marshal shall serve the summons and complaint on Defendant Stanback. A copy of this Order, Memorandum Opinion and Recommendation shall be sent to the parties. The United States Marshall shall serve a copy of this Order with the Summons and Complaint on Defendant Stanback. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JAME,S EARL COOPE,R,

)
)
)
)
)

Plaintiff,

v

1,:1,3CY571

)
)

LEON ST,A.NBACK,

)

Defendant.

)

ORDER, MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE TUDGE
Plaintiff applied to proceed without prepayment of fees and the Court conditionally
granted Plaintiff leave to proceed without ptepayment

of

fees on the terms imposed by the

Prison Litigation Reform ,{ct by otdering that Plaintiff make an kttttal parttal payment and

by staying the action to allow Plaintiff time to make the payment. Plaintiff has now made
the payment. On Novembet L9, 2013, a sufiunons was ettoneously issued as to Defendant

Leon Stanback, pdot to a compliance order by the Court as a tesult of PlaintifPs initial
parial payment.l
On April 1,6,201,4, Plaintiff filed two motions tequesting entry of default and enty
default judgment against Defendant. Q)ocket Enuies 6,

I The issuance of the sumrnons

appears

8.) In his

of

affrdavit, Plaintiff states

to be a docketing error. Plaintiff initially attached the

summons to his Complaint. @ocket E tt"y 1-1.) The Court conditionally granted Plaintiff infonna

(Docket Entty 3), and thereafter received Plaintiffs initial parljLal payment, (See
Docket E rtty dated Nov. 7 , 2013.) The summons was erroneously issued without an order from
the Court accepting Plaintiffs compliance with the Court's previous Ordet. A copy of the
summons was also sent to Plaintiff.

þaøperis status

that Defendant has been served a copy of the summons and complaint. However, a review

of the docket does not indicate ptoof of service.
Ent"y of default is at the Court's disctetion, and "the moving Party is not entided to
default judgment

m^ttet of dght." EMI Aþril Masic, Inc. u. IØhite,618 F. S,rpp. 2d 497,

^s ^

505 (E.D. Ya.2009);

see

United States u. Moradi,673 F.2d725,721 (4th Cir. 1,982). "Absent

waiver or consent, a fuhxe to obtain propeÍ service on the defendant depdves the court

of

petsonal judsdiction over the defendant." Koeltler u. Dodwell, 1,52 F.3d 304, 306 (4th Cir.

1993). A default judgment is void against a defendant in which the court lacks personal
judsdiction. Id.; see also Armco, Inc. u. Penrod-StatffirBldg.51u., 1nc.,733F.2d1.087,1089 (4th
Cir. 1984).

A review of the record indicates that a summons issued pdor to a compliance otder
issued by the Court wâs not proper procedute. Moreovet,

it is appatent

Stanback u/as never served the summons and Complaint. Thus, entry

that Defendant

of default or default

judgment is not proper in this case. See ll/ilson u. Santrust Bank, Inc., Case No. 3:10-CV-573-

F'Dìø-DCK,

2A1, 1,

WL

1,7

067 63

at

* 1,

fX/.D.N. C. Muy 4, 201,1).

IT IS THEREFORE RECOMMENDED that Plaintiffs motions pocket
Enuies 6, 8) fot entry of default and default judgment be

DENIED.

IT IS ORDERED that the Clerk shall teissue the summons as to Defendant
Stanback.

IT IS FURTHER ORDERED

that the United States Marshal shall serve the

summons and complaint on Defendant Stanback.

A copy of this Order, Memorandum Opinion and Recommendation shall be sent to
the parties. The United States Marshall shall serve a copy of this Ordet with the Summons
and Complaint on Defendant Stanback.

oe L. Webster
United States Magistrate Judge

Durham, Notth Caroltna
May 2,201.4