Morales v. Lee et al

Filing 69

OPINION and Order entered 1) denying plaintiff's 68 motion for entry of default; and 2) Directing the Clerk to attempt service of process upon defendant Carl Moore re 52 Amended Complaint filed by Angel Centero Morales. Signed by Magistrate Judge Robert S. Ballou on 10/30/2014. (kab)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
ANGEL CENTERO MORALES
Plaintiff,
v.

JACK LEE, ET AL.,
Defendant(s).

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Case No. 7:13CV00527

OPINION AND ORDER

By: Robert S. Ballou
United States Magistrate Judge

Plaintiff in this prisoner civil rights action under 42 U.S.C. § 1983 has filed a motion for
entry of default against Defendant Carl Moore. Because plaintiff is proceeding in forma
pauperis, the clerk’s office prepared notice of waiver of service paperwork regarding plaintiff’s
amended complaint and mailed it to Moore on August 12, 2014. See 28 U.S.C. § 1915(d). The
notice gave Moore 30 days from that date to return an executed waiver of service and, if he met
this deadline, gave him 60 days from August 12, 2014, to respond to the amended complaint.
See Fed.R.Civ.P. 4(d)(3). The clerk received and docketed on October 21, 2014 a waiver form
dated October 1, 2014 on which Moore’s name is printed on the face. This form is not signed
and does not comply with the requirements for service under Federal Rule of Civil Procedure 4.
Moore has not answered or otherwise responded to the amended complaint.
Plaintiff argues that Moore is in default because he returned the waiver of service, but did
not respond to the complaint within 60 days from August 12, 2014. On that basis, plaintiff moves
for entry of default against Moore. This motion is not well taken.
Moore did not return the waiver within 30 days from August 12, 2014, the date it was
mailed to him. Because Moore did not comply with plaintiff’s request for waiver of service
within the 30-day time limit, neither plaintiff’s request nor Moore’s untimely waiver constituted

effective service of the amended complaint. See Yarbrough v. Garrett, No. 06-14021, 2007 WL
2049293, at *3 (Slip Copy) (E.D. Mich. 2007) (denying entry of default because defendant’s
untimely waiver did not effectuate proper service, the time for filing of the answer never began
to run). Moore’s time to respond cannot start running until the amended complaint is properly
served on him. See Fed.R.Civ.P. 12(a)(1) (A), (B) (“A defendant must serve an answer . . .
within 21 days after being served with the summons and complaint; or if it has timely waived
service under Rule 4(d), within 60 days after the request for a waiver was sent. . . .”).
“It is axiomatic that service of process must be effective under the Federal Rules of Civil
Procedure before a default or a default judgment may be entered against a defendant.” Maryland
State Firemen’s Ass’n v. Chaves, 166 F.R.D. 353, 354 (D.Md. 1996). Because Moore’s late
waiver of service did not effectuate service of the amended complaint, his belated and unsigned
waiver did not trigger the 60-day response deadline offered under Rule 4(d)(3), and he is not in
default.
After review of the record, it is now ORDERED as follows:
1.

Plaintiff’s motion for entry of default (ECF No. 68) is DENIED; and

2.

United States Marshals Service is REQUESTED to attempt personal service of process

upon Carl Moore, to consist of a summons and a copy of plaintiff’s amended complaint, and
shall command all necessary assistance, pursuant to 28 U.S.C. § 566(c), to locate and accomplish
personal service on this defendant.
The Clerk is directed to send a copy of this order to the parties.
Enter: October 30, 2014

/s/ Robert S. Ballou
Robert S. Ballou
United States Magistrate Judge