United States District Court, S.D. Mississippi, Northern Division
CAMYIA U. JOHNSON, Plaintiff,
ERIC SHINSEKI, Secretary, Department of Veteran Affairs; JOE D. BATTLE,
A. Center Director; DALE HETRICK, Assistant Chief of Facilities Management, Defendants.
DANIEL P. JORDAN, III, District Judge.
This employment dispute is before the Court on Defendants' Motion to Set Aside Entry of Default and to Dismiss for Failure to Perfect Service . Pro se plaintiff Camyia U. Johnson responded  in opposition, and Defendants replied . Having fully considered the premises, the Court concludes that the entry of default should be set aside but, rather than dismiss the case, that Johnson should be given time to perfect service.
Johnson claims various acts of discrimination and other constitutional violations at the G.V. Sonny Montgomery Veterans Affairs Medical Center between April and August 2012. After exhausting his administrative remedies, Johnson received a right to sue notice on January 14, 2014. He filed suit on April 11, 2014, naming as defendants Eric Shinseki, Secretary of the Department of Veterans Affairs; Joe D. Battle, V.A. Center Director; and Dale Hetrick, Assistant Chief of Facilities Management. It is not apparent whether Defendants were sued individually or in their official capacities.
After filing suit, and well within the time allowed by Federal Rule of Civil Procedure 4(m), Johnson attempted to serve the named defendants. A return was filed as to Shinseki on May 1, 2014, indicating that the Office of the Secretary received a copy of the process sent to the attention of "Secretary of Veterans Affairs Erick Shinseki." Return . Johnson then filed his Amended Complaint  on May 23, 2014. A few days later, on May 30, 2014, the United States Magistrate Judge entered an order granting assistance in the service of Battle and Hetrick and directing Johnson to reissue the process and forward it to the United States Marshal for service. Order . Johnson complied that same day, and a return was filed June 25, 2014. Return . According to that return, Battle was personally served and may have accepted service on behalf of Hetrick. Id.
Johnson moved  for entry of default against Shinseki on July 16, 2014. On July 24, 2014, the Office of the Secretary acknowledged  receipt of certified mail from Johnson. And on August 13, 2014, Johnson moved [17, 18] for entry of default judgment as to Battle and Hetrick. That same day, the Clerk of Court docketed an entry of default  as to all three Defendants. Finally, on August 26, 2014, the Defendants moved  to set aside entry of default and to dismiss the Amended Complaint.
The Court never entered default judgment against the Defendants. Accordingly, there are three related questions: (1) should the Clerk's entry of default stand; (2) did Johnson properly serve the Defendants; and (3) if not, should the Amended Complaint be dismissed. As discussed below, the Court concludes that service was not perfected but that dismissal is unwarranted.
Starting with the Clerk's entry of default, "[d]efaults are not favored[, ] and their strict enforcement has no place in the Federal Rules.'" Effjohn Int'l Cruise Holdings, Inc. v. A&L Sales, Inc., 346 F.3d 552, 563 (5th Cir. 2003) (quoting Amberg v. FDIC, 934 F.2d 681, 686 (5th Cir. 1991)). "[E]ntries of default are serious; where there are no intervening equities[, ] any doubt should... be resolved in favor of the movant to the end of securing a trial upon the merits.'" Id. (second and third alterations in original) (quoting Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000)).
An entry of default may be set aside under Federal Rule of Civil Procedure 55(c) for "good cause." Defendants argue that there is good cause to set aside the default. As discussed below, Defendants were never properly served, so their answer was never due. Therefore, they were never properly in default, and good cause exists to set aside the judgment.
The nature of the claims dictates the type of service required, but Johnson failed to concisely state whether he intended to sue Defendants individually or in their official capacities. For individual-capacity claims against government employees, Johnson must comply with Rule 4(i)(3), which states:
To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e)....
(Emphasis added). Rule 4(e) states as follows:
(e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual-other than a minor, an incompetent person, or a person whose waiver has been filed-may be ...