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Olson v. Kambiri

United States District Court, Eighth Circuit

November 22, 2013

Aaron Olson, Plaintiff,
v.
James Kambiri, et al, Defendants.

REPORT AND RECOMMENDATION

LEO I. BRISBOIS, Magistrate Judge.

This matter is before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. ยง636(b)(1)(A), upon the Hon. Donovan W. Frank's Order of Reference, [Docket No. 10] (referring all dispositive and non-dispositive motions to the undersigned), [1] and upon Plaintiff's Motion for Injunctive Relief by Default. [Docket No. 30] (hereinafter, "Motion for Default Judgment").[2] For the reasons set forth below, the Court recommends that the Motion, [Docket No. 30], be DENIED without prejudice.

I. BACKGROUND

The general background of this case has been previously set forth by this Court, and need not be repeated here.[3] For purposes of the present Motion, the Court notes the following facts: Aaron Olson ("Plaintiff") is proceeding pro se, and on August 12, 2013, the Court granted Plaintiff's application to proceed in forma pauperis ("IFP"). (Order [Docket No. 6]). Summons were issued by the Court on September 4, 2013, including summons directed to the U.S. Secretary of State John F. Kerry ("Secretary Kerry") and to U.S. Attorney General Eric H. Holder ("General Holder"). (See Docket No. 7). The docket reflects that Plaintiff attempted to serve Secretary Kerry and General Holder when the summons and Amended Complaint, [Docket No. 5], were mailed to them via U.S. Mail on September 19, 2013. (Summons Returned Executed, [Docket No. 23], at 5-8). As of this date, Defendants Secretary Kerry and the U.S. Department of State (the "Federal Defendants") have not answered or otherwise made an appearance in this matter.

II. MOTION FOR DEFAULT JUDGMENT [Docket No. 30]

On November 20, 2013, Plaintiff filed his present Motion for Default Judgment, [Docket No. 30], in which he alleges that the above Federal Defendants are in default. The Federal Rules of Civil Procedure ("Federal Rules" or "Fed. R. Civ. P.") provide that "[t]he United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney." Fed.R.Civ.P. 12(a)(2).

However, it appears from the Docket the Federal Defendants are not required to answer because Plaintiff has not yet in fact properly perfected service on them. In a suit against the United States, in order to perfect service, the Federal Rules require that a plaintiff:

(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 clerk of court-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.

Fed. R. Civ. P. 4(i)(1) (emphasis added). Although the record appears to reflect that Plaintiff has complied with Fed.R.Civ.P. 4(i)(1)(B) and (C) by serving General Holder and Secretary Kerry, respectively, there is no evidence in the record that Plaintiff has served the required copy of the summons and Amended Complaint on the U.S. Attorney for the District of Minnesota, as required by Fed.R.Civ.P. 4(i)(1)(A).

Because the deadline for the Federal Defendants to answer is calculated from the time that service is perfected, if service has not been perfected-as appears to be the case here-then the Federal Defendants are not required to answer, and the Court cannot grant default judgment against them.[4]

III. CONCLUSION

Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY RECOMMENDED that Plaintiffs' Motion for Injunctive Relief by Default, [Docket No. 30], be DENIED without prejudice, as set forth above.


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