FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                    September 4, 2014
                                  TENTH CIRCUIT
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court


    DONALD P. MEYERS,

                Plaintiff-Appellant,

                                                          No. 14-1222
    v.
                                             (D.C. No. 1:13-CV-01508-WJM-CBS)
                                                         (D. Colorado)
    PFIZER, INC.; IAN READ, CEO,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.



         Mr. Donald Meyers unsuccessfully sued Pfizer Inc. 1 During the litigation in

federal district court, Mr. Meyers tried to serve Pfizer, but admits that he “did not

*
      Mr. Meyers states that he does not know if oral argument would be helpful,
and Pfizer asks us to decide on the briefs. Pl.’s Opening Br. at 4 (July 2, 2014);
Defs.’ Resp. Br. at cover page (Aug. 8, 2014). We decline to conduct oral
argument because it would not provide material assistance in deciding the appeal.
See Fed. R. App. P. 34(a)(2)(C).

      This order and judgment does not constitute binding precedent except under
the doctrines of law of the case, res judicata, and collateral estoppel. But the
order and judgment can be cited for its persuasive value under Federal Rule of
Appellate Procedure 32.1(a) and Tenth Circuit Rule 32.1(A).
1
      Mr. Meyers also sued Pfizer’s chief executive officer, but the present
appeal relates only to the claims against Pfizer.
accomplish service in the prescribed manner.” Pl.’s Reply Br. at 2 (Aug. 20,

2014). Though the service was admittedly not as “prescribed,” Mr. Meyers asked

the district court to enter a default judgment. The court declined based on the

absence of valid service, and Mr. Meyers appeals. We affirm.

I.    Standing

      After denying the motion for a default judgment, the district court dismissed

the action, reasoning in part that Mr. Meyers had not alleged an injury in fact to

himself. R. at 101, 111-12. 2 Pfizer argues that we should affirm based on the

absence of standing. We disagree.

      For standing, Mr. Meyers had to allege facts involving his own injury in

fact. See Nat’l Council for Improved Health v. Shalala, 

, 883 (10th

Cir. 1997). He did. According to Mr. Meyers, Pfizer was negligent by producing

a drug (Lipitor) without adequate warnings. The district court relied on the fact

that the person taking the drug was Mr. Meyers’s wife and she was not the

plaintiff. But, Mr. Meyers also alleged in the complaint that:

      !      he had to constantly stay home to care for his wife,

      !      he could not work outside the home, and

      !      he lost income.




2
      The record on appeal is abbreviated in this order and judgment as 

, 13. These effects constitute an injury in fact. See Horstkoetter v. Dep’t

of Pub. Safety, 

, 1279 (10th Cir. 1998) (holding that wives had

incurred injuries in fact when the wrongdoing was directed to husbands because

the “husbands were faced with a loss of income which would have affected the

entire family”).

      Pfizer argues that state law would not allow recovery by Mr. Meyers.

Defs.’ Resp. Br. at 25-26 (Aug. 8, 2014). But, when we address standing, we must

assume that the claim is legally valid. Initiative & Referendum Inst. v. Walker,

, 1092 (10th Cir. 2006) (en banc). Otherwise, “every losing claim

would be dismissed for want of standing.” 

Meyers has standing based on allegations in the

complaint.

II.   Denial of the Motion for a Default Judgment

      Because Mr. Meyers has adequately alleged standing, we must decide

whether the district court erred in denying the motion for a default judgment. Our

review is limited, for we consider only whether the district court abused its

discretion. See Bixler v. Foster, 

, 761 (10th Cir. 2010) (“We review

for an abuse of discretion the district court’s denial of a motion for default

judgment.”). We conclude that the court did not abuse its discretion.

      Entry of a default judgment involves a two-step process. See Fed. R. Civ. P.

55(a)-(b). The first step involves the court clerk’s decision whether to enter a

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default. Fed. R. Civ. P. 55(a). If the defendant fails to timely respond to the

complaint, the plaintiff can request entry of a default by the court clerk. 

clerk enters a default, the plaintiff can ask the court to grant a default judgment. 3

Fed. R. Civ. P. 55(b)(2).

      Mr. Meyers tried to comply with the first step, but failed.

      At that step, entry of a default required proof “by affidavit or otherwise”

that the defendant had failed to respond to the complaint or otherwise defend.

Fed. R. Civ. P. 55(a).

      Mr. Meyers did not ask the clerk to enter a default. Instead, he moved for a

default judgment. Mot. to Enter a “Judgment by Default” Against Pfizer Inc. (Oct.

4, 2013) (Doc. 23). 4 Though Mr. Meyers did not file an affidavit, he certified that

he had mailed the complaint and summons to Pfizer and Skadden, Arps, Slate,

Meagher & Flom LLP. Certificate of Mailing (Sept. 9, 2013) (Doc. 16). 5



3
       The court clerk, rather than the court itself, can enter a default judgment if
the amount involves a “sum certain or a sum that can be made certain by
computation.” Fed. R. Civ. P. 55(b)(1). The present action does not involve a
figure that can be readily computed.
4
      This document does not appear in the record on appeal. The omission is
presumably inadvertent. But Mr. Meyers is not at fault for the omission, and the
Court will take judicial notice of his motion. See Guttman v. Khalsa, 

, 1127 n.5 (10th Cir. 2012).
5
       The certificate of mailing does not appear in the record on appeal, but again
the omission appears inadvertent. The Court will take judicial notice of the
certificate of mailing. See Guttman v. Khalsa, 

, 1127 n.5 (10th Cir.
2012).

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       The Court Clerk declined to enter a default, reasoning that Mr. Meyers had

failed to file the required affidavit or declaration, proof of service, or statement

that Pfizer had failed to file a responsive pleading in the time allotted. R. at 32.

       The Clerk was correct to decline entry of a default because Mr. Meyers’s

certificate of mailing shows that the service was defective. Elsewhere Mr. Meyers

argued that he had served Pfizer based on Federal Rule of Civil Procedure

4(h)(1)(B). Though this rule allows service on corporations by mailing, it also

requires delivery to a corporate agent authorized to receive service. Fed. R. Civ.

P. 4(h)(1)(B). Mr. Meyers did not comply with this requirement. And as noted

above, he acknowledges that service was defective.

       Though the service was admittedly defective, Mr. Meyers contends that

Pfizer had “actual notice,” pointing to a telephone call from defense counsel

requesting an extension of time. This contention fails, as a matter of law, because

a default judgment cannot be based on actual notice when service is defective.

Hukill v. Okla. Native Am. Domestic Violence Coal., 

, 802 (10th Cir.

2008). 6

       The entry of a default was necessary for the court to grant a default

judgment. See 10 Moore’s Federal Practice §55.10[1], at 55-14 (Matthew Bender


6
      By the time the attorney called, Mr. Meyers had already amended the
complaint two times. R. at 20-22, 28-29. Nonetheless, we assume for purposes
of argument that Mr. Meyers mailed Pfizer and the law firm the appropriate
version of the complaint.

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3d ed. 2014). Because the Court Clerk correctly declined to enter a default, the

district court could not grant the proposed default judgment. As a result, the court

acted within its discretion in denying the motion for a default judgment. We

affirm.

                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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