United States District Court, E.D. North Carolina, Eastern Division
UNITED STATES OF AMERICA and STATE OF NORTH CAROLINA, Plaintiffs,
A PERFECT FIT FOR YOU, INC., MARGARET A. GIBSON, and SHELLEY P. BANDY, Defendants.
matter is before the clerk on plaintiffs' motion for
entry of default against Shelley P. Bandy [DE-42]. For the
reasons set forth below, it is DENIED without prejudice.
initiated this action on December 13, 2017 [DE-1] alleging
claims against A Perfect Fit For You, Inc. Margaret A.
Gibson, and Shelley P. Bandy. On March 9, 2018, the United
States Marshal for the Eastern District of North Carolina
submitted a USM-285 form [DE-9]., Therein, a deputy marshal
certified that he had executed, as shown in
"Remarks," a copy of the summons and complaint on
Bandy. The "Remarks" section references an
attachment, wherein the deputy marshal details his efforts to
serve on Bandy on March 7, 2018. These efforts included
calling a U.S. Probation Officer to determine her address,
leaving a voicemail for Bandy, calling Bandy's place of
employment and speaking with a receptionist, arid speaking
with Bandy's attorney. The deputy marshal states that he
then "left a copy of the summons on the front door"
of the residence at the address given to him by the U.S.
Probation Officer, and then "drove away." He states
that Bandy thereafter called him "and stated she had in
fact gotten the summons and would follow the directives
March 29, 2018, Plaintiffs filed a response to a request by
Bandy to respond to the Complaint [DE-21]. Plaintiffs noted
that Bandy had not filed the request with the court, but they
included the request as an attachment to their motion
[DE-21-1]. In Bandy's request, she states that the
summons and complaint were left at her previous address. On
April 3, 2018, the clerk's office issued a notice to
Bandy, informing her that an extension of time requires
leaves of court and therefore a motion must be filed with the
court [DE-23]. The notice was returned to the court -' as
undeliverable on April 9, 2018 [DE-25]. Bandy has not since
filed anything else with the court, and Plaintiffs now move
for entry of default as to Bandy.
of the Federal Rules of Civil Procedure provides: "When
a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must
enter the party's default." Fed.R.Civ.P. 55(a).
Plaintiffs correctly state that Bandy has failed to file an
answer or otherwise appear in this action in this court.
Plaintiffs must also show, however, by affidavit or
otherwise, that Bandy was properly served. Without being
properly served, a defendant has no obligation to file an
answer or appear in this action. See Maryland State
Firemen's Ass'n v. Chaves, 166 F.R.D. 353, 354
(D.Md. 1996) ("It is axiomatic that service of process
must be effective under the Federal Rules of Civil Procedure
before a default or a default judgment may be entered against
a defendant."); Pitts v. O'Gearv.
914 F.Supp.2d 729, 733 (E.D. N.C. 2012) ("Absent waiver
of service of process or consent, the failure to obtain
proper service of process deprives the court of personal
jurisdiction over a defendant."); Henderson v. Los
Angeles Cntv.. No. 5:13-CV-635-FL, 2013 WL 6255610, at
*1 (E.D. N.C. Dec. 4, 2013) (explaining that "a
defendant's duty to respond to a complaint only arises
upon proper service of process" and therefore a
"plaintiff must show, by affidavit or otherwise, that
proper service of process has been effected before default
may be entered"); see also Fed.R.Civ.P.
have not made this showing. Under Rule 4(e) of the Federal
Rules of Civil Procedure, an individual may be served
personally or by leaving a copy of the complaint and summons
"at the individual's dwelling or usual place of
abode with someone of suitable age and discretion who resides
there." Fed.R.Civ.P. 4(e)(2). Alternatively, an
individual may be served by "following state laws for
serving a summons ... in the state where the district court
is located or where service is made." Fed.R.Civ.P.
4(e)(1). Bandy was not served by any of these methods. She
was not personally served, the summons and complaint were not
left with someone of suitable age and discretion at her usual
place of abode, and the posting of a summons and complaint on
a defendant's door does not comply with North Carolina
regarding rules of service. See N.C. Gen. Stat. § 1A-1,
Rule 4(j)(1); German Am. Fin. Advisors & Tr. Co. v.
Rigsby, 623 Fed.Appx. 806, 808 (7th Cir. 2015)
(observing that taping the summons and complaint to a
defendant's door failed to constitute valid service under
Fed.R.Civ.P. 4(e) or North Carolina law). Nor does
Bandy's apparent request for additional time to respond
to the complaint resolve the issue of proper service. See
Freedom Hawk Kayak, LLC v. Ya Tai Elec. Appliances Co.
Ltd., 908 F.Supp.2d 763, 767-68 (W.D. Va. 2012)
(explaining that preliminary actions, including a request to
extend time to file a responsive pleading, does not waive or
forfeit personal jurisdiction defenses); see also German
Am. Fin. Advisors & Tr. Co., 623 Fed.Appx. at 808-09
(finding that a defendant had waived an objection to lack of
proper service where she moved for an extension of time and
set.forth proposed defenses she wanted the court to consider
if the extension was not granted).
Plaintiffs have failed to show proper service, the clerk
cannot find that default is appropriate. Accordingly, the