Opinion
ORDER (1) DIRECTING THE U.S. MARSHAL TO SERVE BOBBIE STITT WITH THE FIRST AMENDED COMPLAINT AND SUMMONS AND (2) DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT [Re: ECF No. 24]
LAUREL BEELER, Magistrate Judge.
On February 19, 2014, Plaintiff Bobby Williams filed a complaint against two Defendants: Bobbie Stitt and Scott Bassin. Original Complaint, ECF No. 1. He also filed an application to proceed in forma pauperis. IFP Application, ECF No. 1-2. On February 21, 2014, the court granted Mr. Williams's IFP application and directed the United States Marshal to serve, without prepayment of fees, the Original Complaint and summons upon Ms. Stitt and Mr. Bassin. 2/21/2014 Order, ECF No. 6. Pursuant to the court's order, the Clerk of the Court issued the summonses for Ms. Stitt and Mr. Bassin on February 28, 2014, and the United States Marshal acknowledged receiving them on March 3, 2014. Unexecuted Summonses (Stitt and Bassin), ECF No. 8; Acknowledge of Receipt of Unexecuted Summonses (Stitt and Bassin), ECF No. 9.
There is nothing on the docket indicating that the United States Marshal actually did successfully and properly serve both Ms. Stitt and Mr. Bassin, although Mr. Bassin subsequently appeared in the action and moved to dismiss Mr. Williams's Original Complaint. See Motion to Dismiss, ECF No. 11.
On April 21, 2014, in response to Mr. Bassin's motion, Mr. Williams filed as a matter of right a First Amended Complaint. FAC, ECF No. 15. In his First Amended Complaint, Mr. Williams dropped Mr. Bassin as a Defendant, again named Ms. Stitt as a Defendant, and named for the first time Heather Fitch and Stanley Fitch as Defendants. Id. On April 21, 2014, the court confirmed that Mr. Williams's filing of the First Amended Complaint mooted Mr. Bassin's motion, 4/21/2014 Order, ECF No. 16, and on April 28, 2014, the court made clear that Mr. Bassin was no longer a Defendant to this action, 4/28/2014 Order, ECF No. 20.
The Clerk of Court issued summonses for the two new Defendants, Ms. Fitch and Mr. Fitch, on April 22, 2014, and the United States Marshal acknowledged receiving them on May 2, 2014. Unexecuted Summonses (Mr. and Ms. Fitch), ECF No. 19; Acknowledge of Receipt of Unexecuted Summonses (Mr. and Ms. Fitch), ECF No. 21. It is not clear whether the United States Marshal served Ms. Stitt with the First Amended Complaint. See generally Docket. On May 22, 2014, the United States Marshal filed proofs of service of the summonses for Mr. Fitch and Ms. Fitch, although the court notes that the United States Marshal stated that neither of them resides as the addresses provided by Mr. Williams, so the United States Marshal left the summons for Mr. Fitch with someone purporting to be his tenant, and the United States Marshal left a card for Ms. Fitch. Executed Summons (Mr. Fitch), ECF No. 36; Executed Summons (Ms. Fitch), ECF No. 37.
Mr. Williams has now moved for default judgment against Ms. Stitt. Motion for Default Judgment, ECF No. 24. Upon consideration of the record in this case, the court DENIES WITHOUT PREJUDICE Mr. Williams's motion. In his motion, Mr. Williams contends that Ms. Stitt was served with the Original Complaint and summons on March 3, 2014, but the filing on March 3, 2014 was merely the United States Marshal's acknowledgment of receipt of the unexecuted summonses for Ms. Stitt and Mr. Bassin, and there is no evidence that Ms. Stitt ever was served with the subsequently-filed First Amended Complaint. Without such evidence, the court cannot enter her default and default judgment against her.
To clear up the confusion surrounding the service of Ms. Stitt, the court DIRECTS the United States to serve Ms. Stitt with the First Amended Complaint and summons (along with all other documents in this case). The court further DIRECTS the United States Marshal to file any executed summons for Ms. Stitt by July 11, 2014.
Once the court receives proof that Ms. Stitt has been properly served with the First Amended Complaint but has not responded to it, Mr. Williams may request that the Clerk of the Court enter her default. Once the Clerk of the Court enters her default, Mr. Williams may again file a motion for default judgment.
IT IS SO ORDERED.