Erikson v. Oklahoma State of et al

Filing 18

ORDER finding as moot 14 Motion for Order; denying 15 Motion for Default Judgment; granting 17 Motion to Lift Stay, as more fully set out. Signed by Honorable David L. Russell on 2/20/15. (jw)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MICHAEL ED ERIKSON,
Plaintiff,
v.
STATE OF OKLAHOMA, and
WOODS COUNTY, OKLAHOMA,
Defendant.

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Case No. CIV-13-858-R

ORDER
In response to a Court order entered on January 16, 2015, Plaintiff requested that the
Court lift the stay imposed in this case on October 2, 2013. (Doc. No. 17). The Court hereby
grants Plaintiff's request and the stay is hereby lifted. Plaintiff's Motion Informing the Court
of Misunderstanding of Presented Evidence (Doc. No. 14) is denied as moot, as it related to
the motion to stay, which was granted, and which stay has by this order been lifted. The
Court next considers Plaintiff's Motion Requesting the Court Issue an Order of Default
Against Defendant State of Oklahoma. (Doc. No. 15). The Process Receipt and Return filed
on August 19, 2013 indicates that Plaintiff, via the United States Marshal Service, served
"the State of Oklahoma c/o State of Okla. General Counsel's Office" via certified mail. Doc.
No. 6. Pursuant to Rule 4(j) service upon a state government requires delivery of a copy of
the summons and complaint to the state's chief executive officer, in this case the governor,
by effecting service under state law. See Okla. Const. Art. 6, § 2. Okla. Stat. tit .12 § 2004
provides for service on the state "by delivering a copy of the summons and of the petition to

the officer or individual designated by specific statute; however, if there is no statute, then
upon the chief executive officer or a clerk, secretary, or other official whose duty it is to
maintain the official records of the [state]." Under Oklahoma law, a court-appointed process
server is permitted to serve the state, by, among other methods, “mailing a copy of the
summons and [initiating pleading] by certified mail, return receipt requested and delivery
restricted to the addressee.” See Okla. Stat. tit. 12, § 2004(C)(2)(b). There is no indication
that Plaintiff attempted service with return receipt and delivery restricted, and indeed, there
is no return receipt filed with the Court. Furthermore, it does not appear that Plaintiff has
served the appropriate person under either federal law or Oklahoma law, and therefore, his
motion for entry of default is hereby DENIED. See Martin v. Oklahoma, 2006 WL 3324917,
*2 (E.D.Okla. 2006)(dismissing complaint where plaintiff attempted service on the attorney
general rather than the governor). Plaintiff shall complete service on the State of Oklahoma
not later than March 24, 2015.
IT IS SO ORDERED this 20th day of February, 2015.

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