MCVICKER v. KNIGHT PROTECTIVE SERVICE, INC.

Filing 7

ORDER denying 5 Request for Default Judgment and setting aside 6 Clerk's Entry of Default. Signed by Chief Judge Gary L. Lancaster on 5/10/11. (map)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CHRISTINA MCVICKER,
Plaintiff,
v.
KNIGHT PROTECTIVE SERVICE,
INC.,
Defendant.

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Civil Action No. 11-245
Chief Judge Lancaster
Magistrate Judge Bissoon

ORDER
For the reasons that follow, Plaintiffs Request for Entry of Default Judgment

(see Doc. 5) will be denied, and the Court will set aside the Entry of Default (Doc. 6).
Sufficient service is a prerequisite to the entry of default. Logan v. Lockett, 2008 WL
4170271, * 1 (W.D. Pa. Sept. 3,2008) (citation omitted). Plaintiff asserts that Defendant was
served by certified mail. See Pl.'s Request for Default & Default J. (Doc. 5) at ~ 4. Counsel rely
on Federal Rule of Civil Procedure 4( e)( 1), see id, which permits service under the laws of the
states "where the district court is located or where service is made." Fed. R. Civ. P. 4(e)(1).
In this case, the undersigned looks to the laws of Pennsylvania, where this Court is
located, and Maryland, where service is to be made. Under either jurisdiction, service by
certified mail, alone, is insufficient. See, e.g., Grant Street Group, Inc. v. D & T Ventures, LLC,
2011 WL 778438, *1-2 (W.D. Pa. Mar. 1,2011). Instead, both jurisdictions require that a
certified mailing be made consistent with "restricted delivery," as offered by the United States
Postal Service. Grant Street Group at * 1 ("under Pennsylvania law, service by mail upon an out­
of-state corporation is not proper unless it is accomplished by a form of mail requiring a receipt

signed by the defendant or [its] authorized agent," such as under Postal Service's restricted
delivery option) (citations omitted); Md. Rule 2-121(a)(3) (certified mailing must request
"Restricted Delivery").
Plaintiff s proof of service form indicates that, although service was made by certified
mail, it was not mailed "restricted delivery." See Doc. 4 at pg. 2 of 3 (Postal Service's
"Domestic Return Receipt," with "Certified Mail" box checked, and "Restricted Delivery"
box unchecked). Nowhere in Plaintiffs proof of service, moreover, does she establish that the
person who signed for the mailing was Defendant's authorized agent. See generally Doc. 4.
For these reasons, and consistent with Federal Rule 55(c), I the Entry of Default (Doc. 6)
is SET ASIDE, and Plaintiffs Request for Default Judgment (see Doc. 5) is DENIED?
IT IS SO ORDERED.

May

d,

2011
Gary L. Lancaster
Chief United States District Judge

cc (via email):
All Counsel of Record

Id. ("[t]he court may set aside an entry of default for good cause"); see also Feliz v. Kintock
Group, 2008 WL 4747817, *4 (3d Cir. Oct. 30,2008) (court may, for good cause, set aside
default sua sponte); Diaz v. U.S., 2011 WL 1656498, *7 n.ll (S.D. Miss. May 2, 2011)
(recognizing same) (citation omitted).
2 For future reference, an application for default judgment by the Court is better presented as a
motion, rather than as a "request," because the former shows up on the Court's pending
adjudications list and the latter does not.
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