Beard v. Walmart

Filing 5

ORDER denying #4 Motion for Entry of Default. Plaintiff is hereby notified that she must serve Defendant in accordance with Rule 4 of the Federal Rules of Civil Procedure, in the time allowed by Rule 4(m), to avoidthe dismissal of her Complaint. Signed by District Judge Frank D. Whitney on 11/16/21. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:21-CV-00495-FDW-DCK
KAREN MARIE BEARD,
Plaintiff,
vs.
WALMART, INC.,
Defendant.

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ORDER

THIS MATTER is before the Court on Plaintiff’s “Motion for Entry of Default Final
Judgment” pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure (Doc. No. 4), which the
Court liberally construes as a Motion for Entry of Default pursuant to Rule 55(a) of the Federal Rules
of Civil Procedure.1 In her Motion, Plaintiff, who is proceeding pro se, asserts that, on September
21, 2021, she served the Complaint (Doc. No. 1) and summons for this mater “upon Sarah , [sic]
Assistant Manager of defendant, Walmart Store # 3733 [sic] place of business located at 1151
Stonecrest Blvd. Tega Cay, SC 29708.” (Doc. No. 4, p. 1). Plaintiff further asserts that, as of October
12, 2021, Plaintiff is entitled to entry of default because more than twenty (20) days have passed from
the date which Plaintiff “served” Defendant without appearance by Defendant. Id.
Rule 55(a) of the Federal Rules of Civil Procedure provides, “[w]hen 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). In

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It is well settled that entry of default is required prior to plaintiff seeking default judgment. See Walker v. Wilkie,
2019 WL 5067476 (W.D.N.C. Oct. 9, 2019) (quoting Silvers v. Iredell Cty. Dep’t of Soc. Servs., 2016 WL 427954,
at *3 (W.D.N.C. Feb. 3, 2016) (“After the clerk has entered a default, the plaintiff may seek a default judgment.”).
As the Clerk has not entered a default in this matter, Plaintiff is not yet entitled to default judgment.

order for a defendant to plead or otherwise defend itself, however, such defendant must have been
properly notified of the action through service in accordance with Rule 4 of the Federal Rules of Civil
Procedure.
Rule 4(c) of the Federal Rules of Civil Procedure provides that a “plaintiff is responsible for
having the summons and complaint served within the time allowed by Rule 4(m)” by “[a]ny person
who is at least 18 years old and not a party….” Fed. R. Civ. P. 4(c) (emphasis added). Thus, as an
initial matter, Plaintiff has failed to properly serve Defendant in accordance with Rule 4 of the Federal
Rules of Civil Procedure because Plaintiff, as a party to this civil action, may not serve Defendant.
Moreover, Rule 4(h), entitled “SERVING A CORPORATION, PARTNERSHIP, OR
ASSOCIATION”, states:
Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or
foreign corporation, or a partnership or other unincorporated association that is subject to suit
under a common name, must be served:
(1) in a judicial district in the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer, a
managing or general agent, or any other agent authorized by appointment or by
law to receive service of process and—if the agent is one authorized by statute and
the statute so requires—by also mailing a copy of each to the defendant…
Fed. R. Civ. P. 4(h)(1). Plaintiff’s “service” again fails to comply with the requirements of Rule 4, as
Sarah, the Assistant Manager of Walmart Store #3733, is not a person authorized to receive service
of process on behalf of Defendant. See Id.; See also N.C. R. Civ. P. 4(j). Accordingly, Plaintiff has
not properly served Defendant and is not entitled to entry of default pursuant to Rule 55(a) of the
Federal Rules of Civil Procedure.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Entry of Default (Doc. No. 4)
is DENIED and Plaintiff is hereby notified that she must serve Defendant in accordance with
Rule 4 of the Federal Rules of Civil Procedure, in the time allowed by Rule 4(m), to avoid

the dismissal of her Complaint.
IT IS SO ORDERED.

Signed: November 16, 2021