Johnson v. Edwards

Filing 32

ORDER denying 24 MOTION for Default Judgment as to Clem Donald McDuffie; denying 25 MOTION for Default Judgment as to Andrea V. Gardner; and denying 26 MOTION for Default Judgment as to Carla M. Laird. Signed by Magistrate Judge Shiva V Hodges on 7/10/2017. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Miyuki Maureen Johnson,
Plaintiff,
vs.
Col. Eric Edwards; Col. Clem Donald
McDuffie; GS-13 Carla M. Laird; and
GS-15 Andrea V. Gardener, in their
individual and personal capacities,
Defendants.

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C/A No.: 3:17-1122-JFA-SVH

ORDER

This matter is before the Court on Plaintiff’s motions for default judgment. [ECF
Nos. 24, 25, 26]. Under Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), all pretrial proceedings
in this action have been referred to the assigned United States Magistrate Judge. For the
reasons that follow, the court denies Plaintiff’s motions for default judgment.
I.

Federal Employee Defendants
Plaintiff, proceeding pro se, brought this action against Col. Eric Edwards, Col.

Clem Donald McDuffie, GS-13 Carla M. Laird, and GS-15 Andrea V. Gardener
(“Defendants”) in their “individual and personal capacities.” [ECF No. 1]. Plaintiff filed
documents purporting to have served the operational complaint [ECF No. 15] on
Defendants [ECF Nos. 22, 23]. Upon receipt of these documents, the Clerk’s Office failed
to note that Defendants are federal employees and incorrectly applied the 30-day
answer/responsive pleading deadline for non-federal employees. [See ECF No. 30, noting
Clerk’s error]. Because Defendants are federal employees, they are entitled to 60 days to

answer or otherwise plead under Fed. R. Civ. P. 12(a)(3) after proper service. The
Clerk’s Office has since applied the 60-day answer/responsive pleading deadline of July
24, 2017, for all Defendants except Laird, whose deadline is July 31, 2017, assuming
proper service. Because those deadlines have not yet passed, Plaintiff’s motions for
default judgment are denied as premature.
II.

Proper Service on Federal Employee Defendants
Pursuant to Fed. R. Civ. P. 12(a)(3), a “United States officer or employee sued in

an individual capacity for an act or omission occurring in connection with duties
performed on the United States’ behalf must serve an answer to a complaint . . . within 60
days after service on the officer or employee or service on the United States attorney,
whichever is later.” Although Plaintiff has provided proof of service of the operational
complaint on the individual Defendants, Plaintiff has provided no proof of service having
been made on the United States Attorney and the Attorney General of the United States.
Pursuant to Fed. R. Civ. P. 4(i)(A)(3), “to serve a United States officer or employee sued
in an individual capacity for an act or omission occurring in connection with duties
performed on the United States’ behalf (whether or not the officer or employee is also
sued in an official capacity), a party must serve the United States and also serve the
officer or employee under Rule 4(e), (f), or (g).” Because no proof of service has yet been
made as to the United States Attorney and the Attorney General of the United States, the
deadline for Defendants to answer cannot be yet determined, as proper service does not
appear to have been effectuated.
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For the foregoing reasons, Plaintiff’s motions for default judgment [ECF Nos. 24,
25, 26] are denied.
IT IS SO ORDERED.

July 10, 2017
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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