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Perkins v. Stanton

United States District Court, D. Minnesota

February 13, 2014

Victor B. Perkins, Plaintiff,
v.
Dr. S. Stanton and Dr. Diane Hart, Defendants.

Victor B. Perkins, Pro Se.

David Fuller, Assistant United States Attorney, for Defendant.

REPORT AND RECOMMENDATION

FRANKLIN L. NOEL, Magistrate Judge.

THIS MATTER came before the undersigned United States Magistrate Judge on Plaintiff's motion for Summary Judgment as a Result of Default (ECF No. 7). This matter was referred to the undersigned for Report and Recommendation pursuant to 28 U.S.C. ยง 636 and Local Rule 72.1. For the reasons set forth below, the Court recommends that Plaintiff's motion be DENIED.

Perkins seeks an entry of default judgment against the Defendants on the basis that they have failed to respond within 60 days of being served. ECF No. 7 at 1. Rule 55(d) states that "default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies this court." Fed. R. Civ. Pro. 55(d). Perkins argument that the Government responded untimely is incorrect. Perkins served Defendant Hart on July 2, 2013 and Defendant Stanton on July 10, 2013. ECF No. 6. Measuring from the date of the person last served, Defendants' response was due on September 9, 2013.[1] Moreover, the record supports the Government's contention that proper service has not been completed in this case. Pursuant to Rule 4(i)(3), in order to effectuate service on an employee of the federal government, one must serve the United States in addition to the individual(s) being sued. Fed.R.Civ.P. 4(i)(3); see also Fed.R.Civ.P. 4(i)(1)(A)-(C). There is no indication on the docket that Perkins has properly served the United States.

V. RECOMMENDATION

Based upon the foregoing, and all the files, records and proceedings herein, IT IS HEREBY RECOMMENDED that Perkins' motion for Summary Judgment as a Result of Default (ECF No. 7) be DENIED.


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