United States District Court, D. Oregon, Eugene Division
MICHAEL T. KALI; Plaintiff,
BULK HANDLING SYSTEM; STEVE ELLISON; RON BRITT; STEVE MILLER; JOSHUA DEVITA., Defendants.
OPINION & ORDER
AIKEN, UNITED STATES DISTRICT JUDGE
Kali ("Plaintiff) filed a complaint on November 20, 2018
against Bulk Handling Systems ("BHS") and Steve
Miller, Steve Ellison, Joshua Devita, and Ron Britt
("Individual Defendants"). Before me are Plaintiffs
Motion for Default (doc. 21) and Defendants' Motion to
Dismiss for insufficient service of process. For the reasons
herein, the parties' motions (doc. 19 and 21) are DENIED.
filed this suit and an application to proceed in forma
pauperis ("IFP") on November 20, 2018. The
Court granted his IFP application and ordered the U.S.
Marshals to complete service of process on Plaintiffs behalf
pursuant to FRCP 4(c)(3). Plaintiff then filed his completed
summonses for the U.S. Marshals to serve. See docs.
9-12. On January 3, 2019, the Marshall filed four Return of
Service forms demonstrating that Individual Defendants were
actually served on December 7, 2018 and given notice to
appear in court. See docs, 15-18. The Return of
Service forms were signed and dated by the Marshals and
included an attachment indicating that service of process was
made via certified first-class mail. See id. At that
point, there was a presumption that Defendants'
responsive pleadings were due within 21 days of service,
i.e., on January 2, 2019.
failed to make any court filings by the January 2nd deadline,
and Plaintiff filed a Motion for Default on January 7, 2019.
Defendants then filed a Motion to Dismiss for insufficient
service of process under FRCP 12(b)(5) the following day.
are two motions before me; (i) Plaintiffs Motion for Default
and (ii) Defendants' Motion to Dismiss for insufficient
service of process. Each is addressed below.
Motion for Default
argues that a default against Defendants is appropriate
because they failed to file a responsive pleading within the
21-day period required by FRCP 12(a)(1)(A). Defendants simply
argue that Plaintiffs motion should be denied because
Plaintiff failed to properly serve Defendants under FRCP
4(e). As explained below, Defendants' Motion to Dismiss
is denied as service of process was proper for Individual
Defendants and Plaintiff shall have 30 days to properly serve
BHS. Thus, the only question is whether an entry of default
of default is the essential first step in the two-step
process of obtaining a default judgment for failure to
appear. Eitel v. McCool, 782 F.2d 1470, 1471 (9th
Cir. 1986). Rule 55(a) provides that ''[w]hen a party
against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided by these
rules, and that fact is made to appear by affidavit or
otherwise, the clerk shall enter the party's
default." Fed.R.Civ.P. 55(a). For entry of default to be
proper, the moving party has the. burden of showing that: (1)
the party against whom default is sought has been properly
served; (2) the Court has proper subject matter jurisdiction;
and (3) the defaulting party has failed to plead or otherwise
defend, U.S. v. Panter, 2012 WL 1245669 at *3 (D.
Or. March 14, 2012).
while Defendants failed to file a responsive pleading within
the 21-day period provided for in Rule 12, entry of default
would be improper under Rule 55(a). Defendants filed their
Motion to Dismiss five days after the 21-day deadline, which
indicates that they intend to defend against the suit. An
entry of default is a harsh penalty and should only be
imposed in extreme circumstances when deciding the case on
its merits is not feasible. TCI Group Life Ins. Plan v.
Knoebber, 244 F.3d 691, 696 (9th Cir. 2001). This case
can be decided on its merits and does not warrant such a
penalty. Thus, Plaintiffs Motion for Default is denied.
Motion to Dismiss
want this case dismissed for insufficient service of
process. First, Defendants argue that Plaintiff
must satisfy Oregon's service rules for service of
process by mail, but that Plaintiff failed to do so. Second,
they argue that BHS should be dismissed because they were not
federal court is without personal jurisdiction over a
defendant unless the defendant has been served in accordance
with Federal Rule of Civil Procedure 4." Crowley v.
Bannister,734 F.3d 967, 974-75 (9th Cir. 2013)
(internal quotation marks and citation omitted). Where a
plaintiff effectuates insufficient service of process, the
court must dismiss the action. Fed.R.Civ.P. 12(b)(5). But
when the ...