Opinion
Civil Action 2:13-cv-44
04-17-2014
RIDING FILMS, INC., Plaintiff, v. JOHN DOES 1-65, Defendants.
Judge Marbley
Magistrate Judge King
OPINION AND ORDER
The Second Amended Complaint names as defendants Gill Apmadoc, Bryan Nibert and Stephen Hupp. ECF 10. Service of process was attempted by certified mail by counsel for plaintiff. See ECF 12, 13, 14. Defendant Nibert filed an answer to the Second Amended Complaint. Answer, ECF 15. Service of process on defendant Apmadoc was originally returned unexecuted, see Summons Returned Unexecuted, ECF 14, and service of process was thereafter made by certified mail by the clerk of the Court. Certificate of Mailing by Clerk, ECF 21; Summons Returned Executed, ECF 23. Neither defendant Apmadoc nor defendant Hupp has responded to the Second Amended Complaint. On April 15, 2014, plaintiff applied to the Clerk for entry of default as against defendants Apmadoc and Hupp. Application to Clerk for Entry of Default, ECF 25; Application to Clerk for Entry of Default, ECF 26. The Clerk has entered defendant Apmadoc's default. Clerk's Entry of Default, ECF 27. Because plaintiff's attempted service of process on defendant Hupp was authorized by neither the Federal Rules of Civil Procedure nor the Ohio Rules of Civil Procedure, the Clerk properly declined to enter defendant Hupp's default.
Although plaintiff captioned this pleading "First Amended Complaint," the docket reflects the original Complaint, ECF 1, as well as the earlier First Amended Complaint, ECF 4.
The claim against defendant Nibert was settled during Settlement Week. Although the mediator reported that dismissal of the claim against defendant Nibert was expected by March 28, 2014, the claim remains pending.
Rule 4(e) of the Federal Rules of Civil Procedure does not authorize service of process on defendant Hupp through certified mail by the plaintiff. Although the Federal Rules of Civil Procedure also authorize service of process in accordance with applicable state law, Fed. R. Civ. P. 4(e)(1), Ohio law authorizes service by certified mail - not by the plaintiff - but by the "clerk." Ohio R. Civ. P. 4.1(A)(1)(a). The local rules of this Court accommodate that procedure:
If a party elects to use Ohio certified mail service, it must be done as follows:S.D. Ohio Civ. R. 4.2 (emphasis added). Plaintiff's attempted service by certified mail on defendant Hupp did not comply with this procedure and this defendant has therefore not been properly served with process.
Plaintiff's attorney shall address the envelope to the person to be served, and shall place a copy of the summons and complaint or other document to be served in the envelope. Plaintiff's attorney shall also affix to the back of the envelope the domestic return receipt card, PS Form 3811(the "green card") showing the name of sender as "Clerk, United States District Court, Southern District of Ohio" at the appropriate address, with the certified mail number affixed to the front of the envelope. The instructions to the delivering postal employee shall require the employee to show to whom delivered, date of delivery, and address where delivered. Plaintiff's attorney shall affix adequate postage to the envelope and deliver it to the Clerk who shall cause it to be mailed.
(b) The Clerk shall enter the fact of mailing on the docket and make a similar entry when the return receipt is received. If the envelope is returned with an endorsement showing failure of delivery, the Clerk shall forthwith notify, electronically or by regular mail, the attorney of record or if there is no attorney of record, the party at
whose instance process was issued. The Clerk shall enter the fact of notification on the docket and shall file the return receipt or returned envelope in the records of the action. (Ohio R. Civ. P. 4.1)
(c) If service of process is refused or was unclaimed, the Clerk shall forthwith notify, by mail, the attorney of record or if there is no attorney of record, the party at whose instance process was issued. If the attorney, or serving party, after notification, files with the Clerk a request for ordinary mail service, accompanied by an envelope containing the summons and complaint or other document to be served, with adequate postage affixed to the envelope, the Clerk shall send the envelope to the defendant at the address set forth in the caption of the complaint, or at the address set forth in instructions to the Clerk. The attorney or party at whose instance the mailing is sent shall also prepare for the Clerk's use a certificate of mailing which shall be signed by the Clerk or a Deputy Clerk and filed at the time of mailing. The attorney or party at whose instance the mailing is sent shall also endorse the answer day (twenty-one (21) days after the date of mailing shown on the certificate of mailing) on the summons sent by ordinary mail. If the ordinary mail is returned undelivered, the Clerk shall forthwith notify the attorney or serving party, electronically or by mail.
(d) The attorney of record or the serving party shall be responsible for determining if service has been made under the provisions of Rule 4 of the Ohio Rules of Civil Procedure and this Rule.
Under these circumstances, the Clerk was not authorized to enter defendant Hupp's default.
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Norah McCann King
United States Magistrate Judge