309 F.R.D. 101
D.D.C.2015Background
- Ilaw sued DOJ, Judge Lucy H. Koh, and law firm Littler Mendelson; Littler is the only remaining defendant at issue in these motions. Plaintiff is pro se.
- Plaintiff attempted service on Littler via Federal Express on April 30, 2015; the package was signed for by a mailroom clerk (Geo Niespolo), whom Littler says is not authorized to accept service. Plaintiff made additional service attempts (May 28 and June 1, 2015).
- Plaintiff moved for entry of default based on the April 30 service; the Clerk entered default on June 4, 2015. Littler moved to vacate the Clerk’s entry of default and later filed a Motion to Dismiss.
- Littler contends April 30 service was defective; Littler received actual notice of the suit on June 1 and filed its Motion to Dismiss on June 22, 2015 (two days after the 21‑day deadline measured from Plaintiff’s May 28 service).
- The court found April 30 service defective because delivery to a mailroom clerk and Federal Express shipment did not satisfy federal, D.C., or California service rules; but recognized Littler had been properly served on June 1 (and possibly May 28).
- The court vacated the Clerk’s entry of default, accepted Littler’s Motion to Dismiss nunc pro tunc (granting a two‑day extension because the brief delay was excusable and not willful, and Plaintiff suffered no prejudice), denied Plaintiff’s subsequent default applications, and granted leave for Plaintiff’s supplemental pleading.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service on April 30, 2015 was effective | FedEx delivery to Littler’s office (signed by mailroom clerk) constituted delivery under Fed. R. Civ. P. 4 | FedEx package was signed by a clerk not authorized to accept service; Fed. R. Civ. P. 4(h)/4(e) do not permit mere mailing/delivery to an unauthorized mailroom employee | April 30 service was defective; FedEx/mailroom signature did not effect proper service under federal, D.C., or California law |
| Whether Littler’s responsive filing was untimely based on May 28 service | May 28 service to a mailroom coordinator made Littler’s June 22 Motion to Dismiss two days late | Littler reasonably believed June 1 was the operative service date given multiple attempts and correspondence confirming June 1 service | Although June 22 filing was two days late if measured from May 28 service, the delay was excusable because of confusion from multiple service attempts; court granted a two‑day nunc pro tunc extension |
| Whether default should be set aside (good cause under Rule 55(c)) | Default appropriate because Littler failed to timely defend after April 30 (and/or May 28) service | Default should be vacated: service was improper and Littler promptly responded upon actual/recognized service; defenses are potentially meritorious; delay was not willful and caused no prejudice | Court vacated the Clerk’s entry of default: factors (willfulness, prejudice, meritorious defense) favored vacatur and doubts resolved for the party seeking relief |
| Whether Plaintiff may file a supplemental pleading in response to the Motion to Dismiss | Opposed only insofar as Littler’s Motion to Dismiss was supposedly moot due to default | Requested leave to respond substantively; court should permit the response | Court granted leave to file the supplemental pleading and allowed Littler to amend its reply by a set deadline |
Key Cases Cited
- Int’l Painters & Allied Trades Union & Indus. Pension Fund v. H.W. Ellis Painting Co., 288 F. Supp. 2d 22 (D.D.C. 2003) (default judgments are generally disfavored)
- Keegel v. Key West & Caribbean Trading Co., Inc., 627 F.2d 372 (D.C. Cir. 1980) (factors for setting aside default: willfulness, prejudice, meritorious defense)
- Jackson v. Beech, 636 F.2d 831 (D.C. Cir. 1980) (on motions to set aside default, doubts resolved in favor of the party seeking relief)
- Scott v. District of Columbia, 598 F. Supp. 2d 30 (D.D.C. 2009) (default cannot be entered where service of process is insufficient)
- Paul v. Didizian, 292 F.R.D. 151 (D.D.C. 2013) (mailing a complaint is insufficient when rule requires delivery)