Filed: Mar. 26, 2019
Latest Update: Mar. 26, 2019
Summary: AMENDED ORDER DEBORAH BARNES , Magistrate Judge . On July 12, 2018, plaintiff filed a complaint alleging that the Department of Veterans Affairs refused to reimburse plaintiff for medical expenses. (Compl. (ECF No. 1) at 5.) The complaint seeks monetary damages. ( Id. at 6.) On August 14, 2018, plaintiff filed a purported proof of service of the complaint on the defendant. (ECF No. 4.) On February 25, 2019, plaintiff filed a motion for default judgment and noticed the motion for hearing be
Summary: AMENDED ORDER DEBORAH BARNES , Magistrate Judge . On July 12, 2018, plaintiff filed a complaint alleging that the Department of Veterans Affairs refused to reimburse plaintiff for medical expenses. (Compl. (ECF No. 1) at 5.) The complaint seeks monetary damages. ( Id. at 6.) On August 14, 2018, plaintiff filed a purported proof of service of the complaint on the defendant. (ECF No. 4.) On February 25, 2019, plaintiff filed a motion for default judgment and noticed the motion for hearing bef..
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AMENDED ORDER
DEBORAH BARNES, Magistrate Judge.
On July 12, 2018, plaintiff filed a complaint alleging that the Department of Veterans Affairs refused to reimburse plaintiff for medical expenses. (Compl. (ECF No. 1) at 5.) The complaint seeks monetary damages. (Id. at 6.) On August 14, 2018, plaintiff filed a purported proof of service of the complaint on the defendant. (ECF No. 4.) On February 25, 2019, plaintiff filed a motion for default judgment and noticed the motion for hearing before the undersigned on March 29, 2019, pursuant to Local Rule 302(c)(19).1 (ECF No. 9.) There has been no appearance by the defendant.
An action based on the negligent or wrongful conduct of a government employee must be brought against the United States as a claim pursuant to the Federal Tort Claims Act, ("FTCA"), 28 U.S.C. §§ 2671-2680; see also Kennedy v. U.S. Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998) ("the United States is the only proper party defendant in an FTCA action").2 And "[a] federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Fed. R. Civ. P. 4." Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988).
Pursuant to Rule 4 of the Federal Rules of Civil Procedure:
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)(1).
Here, plaintiff's proof of service reflects service on "UNITED STATES DEPARTMENT OF VETERANS AFFAIRS" employee "JANE DOE." (ECF No. 4.) Plaintiff, therefore, has not properly served the defendant. Plaintiff's motion for default judgment will be denied without prejudice to renewal upon proper service on the defendant.3
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's February 25, 2019 motion for default judgment (ECF No. 9) is denied without prejudice to renewal;
2. The March 29, 2019 hearing of plaintiff's motion is vacated; and
3. The March 22, 2019 order (ECF No. 10) is stricken.
