McKelvey v. WRJ Staff et al

Filing 151

MEMORANDUM OPINION AND ORDER denying Plaintiff's 143 DECLARATION/MOTION for Default Judgment against Mike Clark. Signed by Magistrate Judge Cheryl A. Eifert on 1/21/2015. (cc: Plaintiff, attys; any unrepresented party) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
JAMEL MCKELVEY,
Plaintiff,
v.

Case No. 3:13-cv-22206

WESTERN REGIONAL JAIL;
MIKE CLARK, Administrator of the
Western Regional Jail;
CORRECTIONAL OFFICER HARSHBARGER;
CORRECTIONAL OFFICER KELLY;
CORRECTIONAL OFFICER RYDER;
CORRECTIONAL OFFICER GILKERSON;
CORRECTIONAL OFFICER BLANKENSHIP;
CORPORAL FERRELL;
LIEUTENANT ALDRIDGE;
CORRECTIONAL OFFICER CHAPMAN;
CORRECTIONAL OFFICER CHASTAIN;
CORRECTIONAL OFFICER ERWIN;
CORRECTIONAL OFFICER COFFEY; and
CORRECTIONAL OFFICER JOHN DOES #1-5,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion for Entry of a Default against
defendant Mike Clark. (ECF No. 143). Some of the defendants have filed a response to
the motion, (ECF No. 146), and Plaintiff has filed a reply to the response. (ECF No. 147).
For the reasons that follow, the Court DENIES Plaintiff’s motion.
Federal Rule of Civil Procedure 55(a) states that “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.”
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However, before a default can be entered, “a court must have jurisdiction over the party
against whom the judgment is sought, which also means that the party must have been
effectively served with process.” 10A Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 2682 (3d ed.); Woltz v. Nash, No. 5:11–cv–00058, 2012 WL
314173, at *4 (S.D.W.Va. Feb. 1, 2012) (holding that an entry of default can only be
entered against a party that was “properly served in the manner required by the Federal
Rules of Civil Procedure”); see, also, Hodges v. Washington Metropolitan Area Transit
Authority, No. CBD–14–0891, 2014 WL 5797754, at *1 (D.Md. Nov. 5, 2014) (“Entry of
default and default judgment may only be entered after a defendant has been properly
served”) (citing Maryland State Firemen's Ass'n v. Chaves, 166 F.R.D. 353, 354 (D.Md.
1996)) (“It is axiomatic that service of process must be effective under the Federal Rules
of Civil Procedure before a default or default judgment may be entered against a
defendant.”)
In this case, Plaintiff moved to amend his complaint and add Mike Clark as a
defendant on November 1, 2013. (See ECF No. 19 at 2). The Court granted the motion
and ordered the Clerk to issue a summons for Mr. Clark. In addition, the United States
Marshals Service was ordered to serve the summons and complaint on Mr. Clark
pursuant to Federal Rule of Civil Procedure 4 and West Virginia Rule of Civil Procedure
4(d). (Id. at 2-3). A summons was issued by the Clerk of Court addressed to Mr. Clark at
his last known residence address. (ECF No. 22). No other address for Mr. Clark was
readily available. The United States Marshals Service attempted to serve Defendant
Clark with the summons and complaint, but service was unsuccessful. Therefore, the
summons was returned unexecuted and filed as unexecuted with the Clerk of Court.
(ECF No. 33). It appears from the documents filed with the Clerk that Mr. Clark has
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moved and left no forwarding address. (Id. at 5). No further attempts at service have
been made. Consequently, Defendant Clark has not been served with process. Because
proper service is a precondition to the entry of a default, Plaintiff’s motion must be
denied.
It is so ORDERED.
The Clerk is instructed to provide a copy of this Order to Plaintiff, counsel of
record, and any unrepresented party.
ENTERED: January 21, 2015

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