United States District Court, S.D. Mississippi, Southern Division
ORDER GRANTING DEFENDANTS' SECOND MOTION TO SET ASIDE ENTRY OF DEFAULT AND MOTION TO DISMISS
LOUIS GUIROLA, Jr., Chief District Judge.
BEFORE THE COURT are the Motions to Set Aside the Entry of Default and to Dismiss [7, 10] filed by Defendants United States of America and Social Security Administration ("the federal defendants"). Having reviewed the pleadings and the applicable law, it is the opinion of the Court that the clerk's entry of default should be set aside, and the Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(5).
This is a Federal Tort Claims Act (FTCA) case in which the plaintiff, Earnest Saucier, alleges the United States and the Social Security Administration (SSA) failed "to maintain its premises in Gulfport Mississippi in a safe condition for the general public." (Compl. 2, ECF No. 1). Specifically, the facts in the Complaint state that the location "presented a dangerous condition in that a foreign object (a nail) was allowed to remain on the floor, " and the plaintiff "stepped on the nail and suffered injuries, " including having his leg amputated. ( Id. )
The Complaint mentions the FTCA but does not cite any specific provision of that statute under which the defendants should be held liable. The Complaint references the "negligent acts and omissions of the Defendants, " but it does not set forth any specific claims. In his prayer for relief, the plaintiff seeks compensatory damages in the amount of $50 million, and punitive damages in the amount of $500, 000. ( Id. at 3).
The record shows that a summons was issued to "United States of America Social Security Administration" on March 20, 2013, the day after the Complaint was filed. Some four months later, in July 2013, the plaintiff served the summons via certified mail to the General Counsel of the Social Security Administration in Baltimore, Maryland. (ECF No. 3).
In November 2013, the plaintiff moved for clerk's entry of default "against the Defendant, Social Security Administration, " on the grounds that it had not filed an answer or otherwise responded to the Complaint. (ECF No. 4). The clerk duly entered default against the "Defendant, United States of America" (hereinafter, the "first entry of default"). (ECF No. 6). The federal defendants then filed their first Motion to Set Aside Entry of Default and Motion to Dismiss. (ECF No. 7). However, the clerk subsequently disregarded the first entry of default because it was entered as to the incorrect defendant, and a docket annotation instructs that the first entry of default should be disregarded.
The clerk then entered default as to the Social Security Administration (hereinafter, "second entry of default") (ECF No. 9). The federal defendants subsequently filed their Second Motion to Set Aside Entry of Default and Motion to Dismiss. (ECF No. 10). Given that the first entry of default has been disregarded, the Court will address the Second Motion to Set Aside Entry of Default, and the entry of default to which it pertains, in this Order.
The federal defendants move to set aside the second entry of default and dismiss the Complaint on the grounds that the plaintiff failed to serve process in compliance with Federal Rule of Civil Procedure 4. They assert that because the defendants were not properly served, "no appearance, pleading, or other response to Plaintiff's Complaint was required at the time default was entered." (Defs.' Mem. in Support of 2d Mot. to Set Aside Entry of Default 1, ECF No. 11).
Federal Rule of Civil Procedure 4 governs service of process of a summons in federal actions. The rule provides specific instructions for serving the United States and its agencies:
(1) United States. To serve the United States, a party must:
(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 court clerk-or
(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United ...