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Kali v. Bulk Handling System

United States District Court, D. Oregon, Eugene Division

April 24, 2019

MICHAEL T. KALI; Plaintiff,
v.
BULK HANDLING SYSTEM; STEVE ELLISON; RON BRITT; STEVE MILLER; JOSHUA DEVITA., Defendants.

          OPINION & ORDER

          ANN AIKEN, UNITED STATES DISTRICT JUDGE

         Michael 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.

         BACKGROUND

         Plaintiff 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.

         Defendants 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.

         ANALYSIS

         There 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.

         I. Motion for Default

         Plaintiff 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 is appropriate.

         Entry 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).

         Here, 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.

         II. Motion to Dismiss

         Defendants want this case dismissed for insufficient service of process.[1] 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 served.

         "A 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 ...


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