Opinion
CIVIL ACTION No. 01-2475-CM
March 27, 2002
MEMORANDUM AND ORDER
Plaintiff filed this case on September 24, 2001. Plaintiff was ordered by U.S. Magistrate O'Hara on February 7, 2002 to show cause why this case should not be dismissed for lack of prosecution. Plaintiff timely responded and further moved the court for default judgment. This matter is before the court on plaintiff's Response to Order to Show Cause; and Alternatively Motion for Judgment by Default (Doc. 5).
In her Response to Order to Show Cause; and Alternatively Motion for Judgment by Default, plaintiff contends that this case should not be dismissed and rather, if anything, default judgment should be entered against defendant. Plaintiff sets forth the steps she has taken to serve defendant with process. Plaintiff's attempts to serve process have proved unsuccessful because, plaintiff claims, defendant has evaded such service. Thus, at this juncture, defendant has not yet been properly served with process.
Plaintiff's request for default judgment must be denied. "'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.'" Dewey v. City of Topeka Eng'g Dep't, No. 97-4037-SAC, 1997 WL 833300, at *3 (D.Kan. Dec. 18, 1997) (quoting Maryland State Firemen's Ass'n v. Chaves, 166 F.R.D. 353, 354 (D.Md. 1996)). Plaintiff in this case has failed to convince this court that defendant has received actual notice of this action and that defendant is purposely attempting to evade service of process. Because defendant in this case has not been served with process, default judgment is not proper.
In addition, plaintiff's request to proceed directly to default judgment does not comport with the two-step process required under Fed.R.Civ.P. 55. First, a party wishing to obtain a default judgment must apprise the clerk "by affidavit or otherwise" that the opposing party has failed to plead or otherwise respond and request that the clerk enter default on the docket. Fed.R.Civ.P. 55(a). Second, following entry of default, the plaintiff "shall apply to the court therefor." Fed.R.Civ.P. 55(b)(2). In this case, plaintiff has not requested that the clerk enter default against defendant pursuant to Rule 55(a).
With respect to plaintiff's response to Magistrate O'Hara's order to show cause, plaintiff contends that she has exercised due diligence in an effort to serve defendant's proper agent. The court concludes that plaintiff has shown cause why this case should not be dismissed. As such, the court grants plaintiff a permissive extension of time pursuant to Fed.R.Civ.P. 4(m) in which to serve defendant. Plaintiff shall serve defendant with process no later than May 15, 2002. Should plaintiff fail to serve defendant by May 15, 2002, this case will be dismissed.
Plaintiff poses the question, "Are persons like the plaintiff to be left without a remedy, because of the strategic vaporization of the defendant?" In response, the court directs plaintiff to Fed.R.Civ.P. 4, which sets out the requirements for effective service of process. For instance, Rule 4(h) allows service on a corporation in the manner prescribed for individuals, which in turn allows service pursuant to the law of the state in which the district court is located. Fed.R.Civ.P. 4(e). The Kansas statutes set forth when service of process may be deemed sufficient notwithstanding a defendant's refusal to receive process. The court urges plaintiff to follow the steps set forth under Kansas law. Only then can this court make a determination regarding whether defendant has received actual notice of this action and is purposely evading service, thereby deeming service of process effective.
IT IS THEREFORE ORDERED that plaintiff's Response to Order to Show Cause; and Alternatively Motion for Judgment by Default (Doc. 5) is granted in part and denied in part. To the extent that plaintiff has shown cause why this case should not be dismissed, the court grants plaintiff's motion. As such, the court orders that plaintiff shall serve defendant with process no later than May 15, 2002. Should plaintiff fail by May 15, 2002 to serve defendant or show this court why service of process is sufficient pursuant to Kansas state law, this case will be dismissed. The court denies plaintiff's motion for judgment by default.