United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION
FOR DEFAULT JUDGMENT
K. VESCOVO, CHIEF UNITED STATES MAGISTRATE JUDGE.
the court is the March 5, 2018 motion of the plaintiff,
Jackie Lee Taylor (“Taylor”), proceeding pro
se, for default judgment against the defendant, Army
Review Boards Agency (“Army Review”). (ECF No.
14.) This case has been referred to the United States
Magistrate Judge for management and for all pretrial matters
for determination and/or report and recommendation as
appropriate. (Admin. Order 2013-05, Apr. 29, 2013.)
reasons that follow, it is recommended that Taylor's
motion for default judgment be denied and that the
Clerk's entry of default be set aside.
PROPOSED FINDINGS OF FACT
31, 2017, Taylor filed her complaint against Army Review on a
court-supplied form styled “Complaint for Violation of
Civil Rights Under 42 U.S.C. § 1983.” (Compl., ECF
No. 1.) Army Review is within the Department of the Army,
which is an agency of the United States. Taylor alleges
that Army Review denied her due process by failing to amend
her military records to indicate that they are incomplete,
and that Army review “committed nonfeasance, ”
made false statements, and violated the Privacy Act of 1974.
(Compl. ¶¶ IV, V, ECF No. 1.)
filed proof of service on August 14, 2017, indicating that
she served Army Review on July 31, 2017. (ECF No. 8.) David
Daniels signed the certified mail receipt as agent of Army
Review. (Id. at 2.) On November 20, 2017, Taylor
filed a motion for default judgment against Army Review. (ECF
No. 10.) The Clerk denied the motion for default judgment on
December 21, 2017 because Taylor did not first request entry
of default. (ECF No. 11.) Subsequently, on December 27, 2017,
Taylor filed a motion for entry of default, (ECF No. 12), and
the Clerk made an entry of default the same day, (ECF No.
13). Taylor filed the current motion for default judgment on
March 5, 2018. (ECF No. 14.) Army Review did not file a
PROPOSED CONCLUSIONS OF LAW
did not properly serve both Army Review and the United
States, as required by Federal Rule of Civil Procedure 4 for
proper service on an agency of the United States; thus,
default judgment is not proper. Due process requires a
plaintiff to properly serve a defendant before a court can
have jurisdiction over that defendant to enter a default
judgment. O.J. Distrib., Inc. v. Hornell Brewing
Co., 340 F.3d 345, 353 (6th Cir. 2003); see also
Omni Capital Int'l Ltd. v. Rudolf Wolff & Co.,
484 U.S. 97, 104 (1987)(“Before a federal court may
exercise personal jurisdiction over a defendant, the
procedural requirement of service of summons must be
satisfied.”); Bank One of Cleveland, N.A. v.
Abbe, 916 F.2d 1067, 1081 (6th Cir. 1990)(stating the
same). “The plaintiff ‘bears the burden of
perfecting service of process and showing that proper service
was made.'” Johnson v. U.S. Postal Serv.,
No. 14-1004, 2014 WL 7365862, at *2 (W.D. Tenn. Dec. 24,
2014)(citing Sawyer v. Lexington-Fayette Urban Cty.
Gov't, 18 Fed.Appx. 285, 287 (6th Cir. 2001)).
According to Federal Rule of Civil Procedure 4(i)(2),
“[t]o serve a United States agency . . ., 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.” The same rule provides that a party serving
the United States must serve (1) the appropriate United
States attorney or United States attorney's office, and
(2) the Attorney General of the United States at Washington,
D.C. Fed.R.Civ.P. 4(i)(1).
Taylor has only provided proof of service as to Army Review.
(ECF No. 8.) Because Taylor has not properly served the
United States in addition to Army Review, as required by
Federal Rule of Civil Procedure 4, the court recommends that
Taylor's motion for default judgment be denied. Moreover,
the Sixth Circuit has found that “if service of process
was not proper, the court must set aside an entry of
default.” O.J. Distrib., 340 F.3d at 353
(citing Amen v. City of Dearborn, 532 F.2d 554, 557
(6th Cir. 1976)); see also Woolery v. Hardin Cty. Gen.
Hosp., No. 15-1070, 2015 WL 2384359, at *1 (W.D. Tenn.
May 19, 2015)(quoting O.J. Distrib., 340 F.3d at
355)(“[I]f there was defective service of process, the
court ‘need not weigh the three factors, ' but must
instead set aside the entry of default.”). Thus, it is
recommended that the Clerk's entry of default be set
foregoing reasons, it is recommended that Taylor's motion
for default judgment be denied and that the entry of default
against Army Review be set aside.
fourteen (14) days after being served with a copy of this
report and recommended disposition, a party may serve and
file written objections to the proposed findings and
recommendations. A party may respond to another party's
objections within fourteen (14) days after being served with
a copy. Fed.R.Civ.P. 72(b)(2). Failure to file ...