Filed: Jun. 15, 2018
Latest Update: Jun. 15, 2018
Summary: Memorandum Opinion & Order THOMAS B. RUSSELL , District Judge . This matter comes before the Court upon Motion by Plaintiff Kevan Paluso, ("Plaintiff"), for default judgment against Defendant Sonny Perdue, Secretary of the Department of Agriculture, ("Defendant"). [DN 4.] For the reasons that follow, IT IS HEREBY ORDERED that Plaintiff's Motion [DN 4] is DENIED without prejudice. A. Discussion Plaintiff sued Defendant on November 3, 2017, alleging claims of (1) age discrimination; (2)
Summary: Memorandum Opinion & Order THOMAS B. RUSSELL , District Judge . This matter comes before the Court upon Motion by Plaintiff Kevan Paluso, ("Plaintiff"), for default judgment against Defendant Sonny Perdue, Secretary of the Department of Agriculture, ("Defendant"). [DN 4.] For the reasons that follow, IT IS HEREBY ORDERED that Plaintiff's Motion [DN 4] is DENIED without prejudice. A. Discussion Plaintiff sued Defendant on November 3, 2017, alleging claims of (1) age discrimination; (2) ..
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Memorandum Opinion & Order
THOMAS B. RUSSELL, District Judge.
This matter comes before the Court upon Motion by Plaintiff Kevan Paluso, ("Plaintiff"), for default judgment against Defendant Sonny Perdue, Secretary of the Department of Agriculture, ("Defendant"). [DN 4.] For the reasons that follow, IT IS HEREBY ORDERED that Plaintiff's Motion [DN 4] is DENIED without prejudice.
A. Discussion
Plaintiff sued Defendant on November 3, 2017, alleging claims of (1) age discrimination; (2) hostile work environment and retaliation; (3) constructive discharge; (4) invasion of privacy; and (5) intentional infliction of emotional distress. [See DN 1.] To date, no appearance has been entered on behalf of Defendant. Accordingly, Plaintiff moved for a default judgment on February 23, 2018. [DN 4.] By Order of the Court, [DN 5], Plaintiff filed proof of service, signed on November 20, 2017, showing that a summons and copy of the complaint was sent to Defendant at his office address in Washington D.C. [See DN 6-1.] Irrespective of whether Plaintiff has sued Defendant in his official capacity or his individual capacity, service has not been proven to be proper and so the Court will deny Plaintiff's Motion for default judgment without prejudice.
Federal Rule of Civil Procedure 4(i) provides the following:
(i) SERVING THE UNITED STATES AND ITS AGENCIES, CORPORATIONS, OFFICERS, OR EMPLOYEES.
(1) United States. 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.
(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.
(3) Officer or Employee Sued Individually. 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)
Fed. R. Civ. P. 4(i).
The bolded portions of the above-quoted language indicate that, regardless of whether a government official such as Defendant is sued in his or her official capacity or his or her individual capacity, a plaintiff must serve the United States. Fed. R. Civ. P. 4(i)(2)-(3). And Rule 4 further instructs that, in order to effectuate service on the United States, a party must, inter alia, "deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought. . . ." Fed. R. Civ. P. 4(i)(1)(A)(i).
In the present case, Plaintiff has provided no proof that a copy of the summons and/or the complaint were properly served upon the United States, as the delivery slip Plaintiff filed with the Court evidences only service upon Defendant's Washington D.C. address. [DN 6-1.] In the absence of proof of proper service, the Court shall deny Plaintiff's Motion without prejudice. If, after proper service is effectuated in accordance with Rule 4(i), Defendant fails to make a timely appearance, Plaintiff may refile this Motion at that time.
B. Conclusion
For the reasons stated herein, and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED that Plaintiff's Motion [DN 4] is DENIED without prejudice.
IT IS SO ORDERED.
