Opinion
24-2030-JAR-TJJ
07-24-2024
SHELLY LAMB, Plaintiff, v. KANSAS DEPARTMENT OF CORRECTIONS, Defendant.
MEMORANDUM AND ORDER
JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff Shelly Lamb's Application for Clerk's Entry of Default (Doc. 8). A defendant shall serve an answer within twenty-one days after service of the Complaint. When a party fails to plead or otherwise defend, and that fact is made to appear by affidavit or otherwise, default should be entered against that party.
Plaintiff captioned her document as “Plaintiff's Motion for Default Judgment.” But she properly docketed the motion as an application for entry of default, and her proposed order on this motion contemplates an entry of default. Given that a clerk's entry of default is a prerequisite to default judgment, the Court construes Plaintiff's filing as an application for clerk's entry of default, rather than a motion for default judgment. See Fed.R.Civ.P. 55(a)-(b).
Here, Plaintiff has not shown that the Kansas Department of Corrections (“KDOC”) has been properly served. Under Fed.R.Civ.P. 4(j), a state agency must be served by either “(A) delivering a copy of the summons and of the complaint to its chief executive officer, or (B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant.” Plaintiff filed a summons return on May 14, 2024, which states that she completed personal service on Jim Evans, Records Manager, at the Kansas Department of Corrections address in Hutchinson, Kansas. There is no indication that Evans is the chief executive officer of the KDOC. Nor does it appear that Plaintiff has complied with the Kansas statute that governs service on state agencies. Accordingly, the Court denies Plaintiff's motion for default judgment.
Doc. 7.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff Shelly Lamb's Application for Clerk's Entry of Default (Doc. 8) is denied.
IT IS SO ORDERED.