Manohar v. Baxter

          ORDER

          Kristine G. Baker, United States District Judge.

         Before the Court is plaintiff Lakhraj Manohar's motion for default judgment and demand for jury trial and motion to expedite (Dkt. Nos. 32, 33). For the reasons discussed below, the Court denies Mr. Manohar's motion for default judgment and demand for jury trial and his motion to expedite (Dkt. Nos. 32, 33).

         I. Background

         This matter has been pending for some time, and it remains unresolved due to difficulties serving defendants. Mr. Manohar has not provided the address for defendants, though his complaint states that at least one defendant is located at “St. Bernard Hospital” which is located at the “corner of Carson and Matthews.” (Dkt. No. 1, at 3). The summonses to defendants have therefore been sent to St. Bernard's Hospital in Jonesboro, Arkansas, which is located at 225 East Jackson Avenue, Jonesboro, AR 72401 (see Dkt. Nos. 17, 18, 19, 25, 26, 27, 30, 34).

         The Court has previously denied Mr. Manohar's two separate motions for default judgment for failure to effect service upon defendants (Dkt. Nos. 23, 29). When denying Mr. Manohar's latest motion for default judgment, the Court held that defendants Lieutenant Baxter and Mr. Vandergriff have not been served with process by Mr. Manohar in accordance with Rule 4 of the Federal Rules of Civil Procedure (Dkt. No. 29, at 2). Since Mr. Manohar is proceeding in forma pauperis, the Court directed the Clerk's Office to prepare the summonses in this matter for Lieutenant Baxter and Mr. Vandergriff and ordered the U.S. Marshal to serve the defendants in accordance with Rule 4 of the Federal Rule of Civil Procedure (Id., at 4). As to Mr. Ollo, the Court directed Mr. Manohar to provide to the Court, within 14 days of the entry of that Order, confirmation of the address or an updated address and contact information for Mr. Ollo (Id.).

         The summonses to Lieutenant Baxter and Mr. Vandergriff have been returned unexecuted (Dkt. Nos. 30, 34). On April 30, 2019, Mr. Manohar filed an untimely notice in which he informed the Court that the addresses for defendants are correct (Dkt. No. 31). No. one has entered an appearance on behalf of any of the defendants nor have any of the defendants filed answers.

         II. Motion For Default Judgment And Demand For Jury Trial

         The Court denies Mr. Manohar's motion for default judgment and demand for jury trial (Dkt. No. 32). “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). Mr. Manohar has not demonstrated that the defendants have failed to plead or otherwise defend in this action because he provides no proof that the defendants were properly served with process.

         Per Federal Rule of Civil Procedure 4(e), an individual may be served in any of the following ways: (1) following the state laws for service where the individual is located; (2) delivering a copy of the summons and complaint to the individual personally; (3) by leaving a copy of the summons and complaint at the individual's usual place of abode; or (4) by delivering a copy of the summons and complaint to an authorized agent of the individual. Fed.R.Civ.P. 4(e). Per Arkansas Rule of Civil Procedure 4(d)(8)(A)(i), an individual may be served via certified mail in the following way:

[B]y any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the address or the agent of the addressee. The addressee must be a natural person specified by name, and the agent of the addressee must be authorized in accordance with U.S. Postal Service regulations.

Ark. R. Civ. P. 4(d)(8)(A)(i) (emphasis added).

         Mr. Manohar is not entitled to entry of a default judgment against Lieutenant Baxter, Mr. Vandergriff, or Mr. Ollo, as there is no proof that service was made on defendants. The defendants are individuals. Mr. Manohar offers no record evidence that any defendant was served in conformity with the Federal Rules of Civil Procedure or the Arkansas Rules of Civil Procedure. The summonses sent to Lieutenant Baxter and Mr. Vandergriff by certified mail with a return receipt and delivery restricted to the addressees were returned unexecuted (Dkt. Nos. 30, 34). There is no other evidence in the record indicating that defendants have been effectively served. For these reasons, the Court denies Mr. Manohar's motion for default judgment and demand for jury trial (Dkt. No. 32).

         III. Failure To Effect Service

         For the reasons previously stated, it appears that none of the defendants have been properly served in this action. More than 90 days have passed since Mr. Manohar's complaint was ...