United States District Court, S.D. Mississippi, Southern Division
SAMUEL E. TOOTLE, II PLAINTIFF
ANTHONY DAWSON, DEFENDANTS
ORDER DENYING MOTION FOR ENTRY OF DEFAULT FINAL
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE
THE COURT is the  Motion for Entry of Default Final
Judgment filed by Plaintiff Samuel E. Tootle pursuant to
Federal Rule of Civil Procedure 55. Plaintiff Tootle, who is
proceeding pro se, requests that the Court enter a
default judgment against Defendants. Because Plaintiff has
failed to properly serve Defendants, the Court will deny his
Motion, and, further, will order Plaintiff to serve
Defendants by September 7, 2017.
filed a Complaint against multiple Defendants on May 22,
2017. Plaintiff represents that Defendants are all employees
of the Gulf Coast Veterans Health Care System (“the
VA”) in Biloxi, Mississippi. (See Compl. 3-4
(¶¶ 11-16)). He further states that “[a]t all
times herein, the individual defendants acted for an[d] on
behalf of the [VA] and in their own capacitys [sic]
. . . .” (Id. at 4-5 (¶17); see also
Id. at 2 (¶3)). He has attempted to state claims
pursuant to 42 U.S.C. § 1983 and requests monetary
damages, injunctive relief, and declaratory relief against
13, 2017, Plaintiff filed Proofs of Service with the Court.
(See Proofs of Service, ECF No. 3). The Proofs of
Service reflect that Plaintiff served Defendants via
certified mail, return receipt requested, at their work
address at the VA, and by no other means. In his Motion,
Plaintiff also represents that he served Defendants via
certified mail “at their place of employment . . .
.” (Mot. 1 (¶2), ECF No. 4) (see also
Affidavit, ECF No. 4-2). He argues that Defendants have
“failed to plead or otherwise defend this action, and
that [he] is entitled to judgment by default . . . .”
(Mot. 2 (¶4)).
Rule of Civil Procedure 4, governing service of process, does
not itself authorize service by certified mail on individuals
such as Defendants. See Fed. R. Civ. P. 4(e). The
Rule does permit service by “following state law for
serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located
or where service is made ..... ” Id.
“However, under Mississippi law, service by certified
mail is not permitted upon an in-state defendant” such
as each Defendant here. See Darnell v. Jimenez, No.
1:16cv30-HSO-JCG, 2017 WL 2634365, at *3 (S.D.Miss. June 19,
2017) (citing Miss. R. Civ. P. 4(c) and Triple C.
Transp., Inc. v. Dickens, 870 So.2d 1195, 1198 (Miss.
2004)); Shorty v. Sparkman, No.
5:12-cv-114(DCB)(MTP), 2013 WL 4773943, at *2 (S.D.Miss.
Sept. 4, 2013). Additionally, Plaintiff has not complied with
Federal Rule of Civil Procedure 4(i) regarding service on
government employees. See, e.g., Johnson v.
Shinseki, No. 3:14CV304-DPJ-FKB, 2014 WL 5363781, at
*2-3 (S.D.Miss. Oct. 21, 2014).
Rule 4(c)(2) states that “[a]ny person who is at least
18 years old and not a party may serve a
summons and complaint.” (emphasis added). The Fifth
Circuit has recognized that there is no mailing exception to
the nonparty requirement for service. See Shabazz v. City
of Houston, 515 F. App'x 263, 264 (5th Cir. 2013).
Therefore, Rule 4(c)(2)'s prohibition of service by
parties to a lawsuit applies even where a plaintiff attempts
service by mail, and Plaintiff's service on Defendants is
also deficient in this respect. See, e.g.,
Finkley v. Shulkin, No. 1:16CV290-LG-RHW, 2017 WL
1380468, at *1 (S.D.Miss. Apr. 11, 2017). Plaintiff cannot be
both a party and a process server.
Court may deny a motion for default judgment where the
plaintiff has not properly served a defendant. See
Thompson v. Dir. Tex. Dep't of Criminal Justice, 291
F. App'x 581, 581-82 (5th Cir. 2008); Arceneaux v.
Davidson, 325 F.Supp.2d 742, 744 (S.D.Miss. 2004)
(“The law is clear . . . that unless there has been
valid service of process a default judgment may not be
entered.”). Indeed, any default judgment entered under
these circumstances would be void. See, e.g.,
Rogers v. Hartford Life & Acc. Ins. Co., 167
F.3d 933, 940 (5th Cir. 1999). Accordingly, taking into
account the service issues outlined above, the Court will
deny Plaintiff's request to enter a default judgment
the 90-day deadline for Plaintiff to properly serve
Defendants under Rule 4(m) is quickly approaching. Therefore,
the Court will grant Plaintiff additional time to properly
serve Defendants. Plaintiff must properly serve Defendants
and must file the proper proofs of service with the Clerk of
Court, all in the manner required by Rule 4, no later than
September 7, 2017.
IS THEREFORE ORDERED AND ADJUDGED that the 
Motion for Entry of Default Final Judgment is
IS FURTHER ORDERED AND ADJUDGED that Plaintiff must
properly serve Defendants and must file the proper proofs of
service with the Clerk of Court, all in accordance with
Federal Rule of Civil Procedure 4, no later than September 7,
2017. Plaintiff is warned that should he fail to
properly serve any Defendant or fail to file a proper proof
of service in the record as to any Defendant by September 7,
that Defendant will be dismissed without prejudice and
without further notice to Plaintiff pursuant to Federal Rule
of Civil Procedure 4(m).