Wilson et al v. A&K Rock Drilling, Inc

Filing 9

REPORT AND RECOMMENDATIONS that Plaintiff's 7 Application to Clerk for entry of default & 8 MOTION for Default Judgment be DENIED without prejudice. Objections to R&R due w/in fourteen (14) days. Signed by Magistrate Judge Kimberly A. Jolson on 9/15/2016. (kk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CAROL A. WILSON, et al.,
Plaintiffs,
v.

Civil Action 2:16-cv-739
Judge Algenon L. Marbley
Magistrate Judge Jolson

A&K ROCK DRILLING, INC,
Defendant.
REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiffs’ application for entry of default (Doc. 7), and
motion for default judgment (Doc. 8). For the reasons that follow, it is RECOMMENDED that
the application and motion be DENIED without prejudice.
I.

BACKGROUND

According to the complaint, Defendant is an Ohio corporation that, based upon
agreements it executed from 2002 to 2008, was obligated to make payments to various benefits
funds associated with the Ohio Operating Engineers. See Doc. 1 ¶¶ 7–8, 10 (health and welfare
fund); id. ¶ 13 (pension fund); id. ¶ 18 (apprenticeship fund); id. ¶ 23 (education and safety
fund). On July 28, 2016, Plaintiffs brought this action alleging unpaid benefits contributions in
violation of the Employee Retirement Income Security Act. (See, e.g., Doc. 1 ¶ 23 (citing 29
U.S.C. §§1132, 1002(1)–(3)).

That same day, Plaintiffs filed a Request for Issuance of

Summons. (Doc. 2). Again on that same day, the clerk signed the summons form, which
included the seal of the Court, and entered the form on the docket. (Doc. 4). On August 1, 2016,
a copy of the summons was returned. (Doc. 6). The copy was unsigned and unsealed, and it
contained a stamp in the header indicating that it was a copy of the Request for Issuance of

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Summons. (See id.). On August 31, 2016, Plaintiffs filed an application for entry of default
(Doc. 7), and a motion for default judgment (Doc. 8).
II.

DISCUSSION

“In order to obtain a default judgment, a plaintiff must properly serve a defendant with a
copy of the summons and complaint in accordance with the Federal Rules of Civil Procedure and
applicable state rules.” Coleman v. Sonoda Eng’g, Ltd., No. CIV. A. 06-10-JBC, 2006 WL
6292644, at *1 (E.D. Ky. Oct. 25, 2006). Federal Rule of Civil Procedure 4(a)(1)(F) and (G)
require that a summons “be signed by the clerk” and “bear the court’s seal.” See also Fed. R.
Civ. P. 4(b) (“On or after filing the complaint, the plaintiff may present a summons to the clerk
for signature and seal.” (emphasis added)); Ohio R. Civ. P. 4(B) (“The summons shall be signed
by the clerk . . . .”). While such a summons was issued on July 28, 2016 (Doc. 4), Plaintiff
served Defendant with the unsigned summons form entered on the docket as the Request for
Issuance of Summons (see Doc. 6 at 1 (the returned summons, file stamped “Doc #: 2,” which
was the Request for Issuance of Summons)). Service has therefore not been effected. See
United States v. Nat’l Muffler Mfg., Inc., 125 F.R.D. 453, 455 (N.D. Ohio 1989) (“Plaintiff’s
failure to serve defendant with a signed and sealed summons cannot be regarded as a mere
oversight . . . . The provisions of Rule 4[] are designed to assure a defendant that the summons
was issued by the clerk of court and not by plaintiff or plaintiff’s attorney.”); Lagarde v. Chase
Bank U.S.A., No. 10-12218, 2010 WL 5056190, at *2 (E.D. Mich. Dec. 6, 2010) (service of
process improper where Plaintiff failed to issue a summons “signed by the clerk” with “the
court’s seal”).
Default judgment is improper where service has not been effected.

See, e.g., O.J.

Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 353 (6th Cir. 2003) (“Due process requires

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proper service of process for a court to have jurisdiction to adjudicate the rights of the parties.
Therefore, if service of process was not proper, the court must set aside an entry of default.”
(citation omitted)); see also Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104
(“Before a federal court may exercise personal jurisdiction over a defendant, the procedural
requirement of service of summons must be satisfied.”). Likewise, default judgment is therefore
improper where, as here, the summons does not bear the Court’s seal. See Phelps v. Am. Gen.
Fin. Servs., No. CIV. 08-CV-10552, 2008 WL 3978318, at *3 (E.D. Mich. Aug. 22, 2008)
(“[T]he relief requested should still be denied because a default judgment may be properly
granted only after the plaintiff has shown that defendants have been served as required by the
Federal Rules. . . .

The summonses served by Plaintiff . . . do not bear the Court’s seal.”);

Coleman, 2006 WL 6292644, at *1 (denying motion for default judgment where “there [wa]s no
indication in the record that [the defendant] ha[d] ever been served with a summons signed by
the Clerk”).
For these reasons, and because service in this case has not been effected, it is
recommended that Plaintiffs’ application for entry of default (Doc. 7), and motion for default
judgment (Doc. 8) be denied without prejudice.
III.

CONCLUSION

For the reasons stated, it is RECOMMENDED that Plaintiffs’ application for entry of
default (Doc. 7), and motion for default judgment (Doc. 8) be DENIED without prejudice.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with

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supporting authority for the objection(s).

A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.
§ 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.

Date: September 15, 2016

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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