Baker v. U.S. Department Veteran Affairs et al

Filing 14

OPINION AND ORDER: Denying Motion for Entry of Default 10 . (See attached PDF for complete details). (A copy of this Order sent to Plaintiff). Signed on 11/20/2017 by Magistrate Judge Mark D. Clarke. (jkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

MELODY BAKER,

Case No. 1:17-cv-00871-CL
Plaintiff,

v.
OPINION AND ORDER
UNITED STATES DEPARTMENT
OF VETERANS AFFAIRS, et al,
Defendants.
CLARKE, Magistrate Judge.
Plaintiff Melody Baker brings this cause of action against the defendants, the United
States Department of Veteran's Affairs and the White City VA, SORCC. The case comes
before the Court on Plaintiff's motion for entry of default (#10). For the reasons below, the
motion is DENIED.

DISCUSSION
When 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).

However, until a defendant is properly served, the

defendant has no duty to answer or make other motions. See Fed.R.Civ.P. 12(a)(l)(A) (defendant
must serve answer "within 20 days after being served with the summons and complaint"). As
defendants have no duty to plead until properly served, entry of default prior to service is
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improper. See Fed.R.Civ.P. 55(a) (clerk shall enter default, when party against whom judgment
is sought has failed to plead);
To serve a United States agency or corporation, or a United States officer or employee
sued only in an official capacity, a party must serve the United States and also send a copy of the
summons and of the complaint by registered or certified mail to the agency, corporation, officer,
or employee. Fed.R.Civ.P. 4(i)(2). To serve the United States, a party must:
(A) (i) deliver a copy of the summons and of the complaint to the United States
attorney for the district where the action is brought--or to an assistant United
States attorney or clerical employee whom the United States attorney
designates in a writing filed with the court clerk--or
(ii) send a copy of each by registered or certified mail to the civil-process
clerk at the United States attorney's office;
(B) send a copy of each by registered or certified mail to the Attorney General of
the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the United
States, send a copy of each by registered or certified mail to the agency or
officer.

Fed.R.Civ.P. 4(i)(l).
Additionally, a default judgment may be entered against the United States, its officers, or
its agencies only ifthe claimant establishes a claim or right to relief by evidence that satisfies the
court. Fed.R.Civ.P. 55(d).
Plaintiff has filed a motion for entry of default against the defendants. However, while it
appears that she has served the agency- the U.S. Department of Veteran Affairs - she has not
shown that she properly served the United States by delivering a copy of the summons and the
complaint to the United States attorney for the District of Oregon, and sending a copy of each to
the Attorney General of the United States at Washington D.C. While Plaintiff may cure this
failure to properly serve the government, she may not seek default against a party who has not

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been served. Additionally, she has not shown that she has established a claim or right to relief by
evidence that satisfies the court, as required by Rule 55. Therefore, Plaintiffs motion is denied.
ORDER

For the reasons above, the motion for entry of default (# 10) is denied. Plaintiff should
immediately seek to properly serve the United States government as require b
IT IS SO ORDERED AND DATED this

2LJ..-------/--~y of NoY.tdlMR:
//

United States Magistrate Judge

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