United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
HONORABLE CANDY W. DALE UNITED STATES MAGISTRATE JUDGE.
the Court are Petitioner's Motion for Entry of Default
(Dkt. 9) and Respondent's Motion to Dismiss (Dkt.
Having reviewed the record, the Court finds that the facts
and legal arguments are adequately presented in the briefs
and record. Accordingly, in the interest of avoiding delay,
and because the Court conclusively finds that the decisional
process would not be significantly aided by oral argument,
the motions will be decided without oral argument. Dist.
Idaho L. Rule 7.1(d).
following reasons, the Court will deny both motions and
require the Petitioner to serve the United States Attorney,
in accordance with Rule 4, by January 15, 2020.
Sean Craft, filed a petition for review on March 5, 2019,
appealing the Commissioner's adverse ruling at the
administrative level of his claim for Social Security
disability benefits. (Dkt. 1.) Service of summons was made to
the Office of the Regional Chief Counsel of the Social
Security Administration on May 6, 2019, and the summons was
returned executed on July 8, 2019. (Dkt. 7.) Service of
summons was also allegedly made to the United States Attorney
on May 7, 2019, and returned executed on July 8, 2019. (Dkt.
October 4, 2019, Petitioner filed a motion for entry of
default under Federal Rules of Civil Procedure 55(a) and (d),
alleging Respondent failed to appear or answer within the
allotted ninety-day time period. (Dkt. 9.) Respondent filed
an opposition to the motion for entry of default and a motion
to dismiss on October 7, 2019. (Dkt. 11, 12.) Pursuant to
Federal Rules of Civil Procedure 4(m) and (i), Respondent
claims that Petitioner did not properly serve the United
States Attorney within ninety days, and therefore,
Respondent's time to respond never began and Respondent
cannot be in default. Id. To date, Petitioner has
not responded to the motion to dismiss.
Federal Rules of Civil Procedure authorize the Court to enter
default judgment against any party that fails to answer or
otherwise defend within twenty-one days after being served
with the summons and complaint. Fed.R.Civ.P. 55(b)(2); 12(a).
4(i) governs service on the United States and requires that
the summons and complaint must be served as follows: (1) by
delivering a copy to the United States attorney for the
district where the action is brought - or its designee - or
by sending the same by registered or certified mail to the
civil-process clerk at the United States attorney's
office; (2) sending a copy of the summons and complaint to
the Attorney General of the United States by registered or
certified mail at Washington, D.C.; or (3) sending a copy to
the agency or officer whose order has been challenged.
See Fed. R. Civ. P. 4(i)(1)(A), (B), (C).
Federal Rule of Civil Procedure 4(m), “[i]f a defendant
is not served within 90 days after the complaint is filed,
the court . . . must dismiss the action without prejudice
against the defendant or order that service be made within a
specified time.” The rule further provides that the
court must extend the time for service “if the
plaintiff shows good cause for the failure” to
accomplish service as required. Fed.R.Civ.P. 4(m). The
Advisory Committee Notes from the 1993 Amendment of Rule 4
state that one of the purposes for the addition of subsection
(m) is to be sure that “[a] party failing to effect
service on all the offices of the United States as required
by the rule is assured adequate time to cure defects in
Petitioner was required, inter alia, to deliver a
copy of the summons and the complaint to the United States
Attorney and the Social Security Administration. Service was
made to the agency but was not made to the United States
Attorney or Attorney General of the United States.
Petitioner's Return of Service (Dkt. 8) appears to show
that the United States Attorney was served on May 7, 2019,
although the Respondent represents, in the Declaration of
Joanne Patricia Rodriguez, that “[n]either [Joanne
Rodriguez], nor [her] office, was ever served with the
Petition or Summons in this case.” (Dkt. 11-2.)
Respondent further represents that the person whose name
appears on the Return of Service (Dkt. 8) does not work for
the United States Attorney's office, but may instead be
the Chief Deputy for the Idaho Attorney General. (Dkt. 11-2.)
To date, Petitioner has not filed a response and has not
denied the error in service.
Court finds good cause exists to extend the time for
Petitioner to cure the error in service. The mistake in
service is ministerial and no prejudice will result by
allowing Petitioner time to accomplish service. The Court
will therefore extend the time for service and direct
Petitioner's counsel to serve the United States Attorney,
as required by Fed.R.Civ.P. 4(i), on or before January 15,
2020. If Petitioner does not ...