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Western Surety Company v. United States

United States District Court, D. Arizona

April 4, 2018

Western Surety Company, Plaintiff,
v.
United States of America, Defendant. Pima County Intervenor Plaintiff,
v.
Western Surety Company, et al., Intervenor Defendants.

          ORDER

          CINDY K. JORGENSON, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Intervenor Defendant Employers Mutual Casualty Company's (“EMC”) Motion for Entry of Default Judgment against Intervenor Defendants Blue Diamond Contracting, LLC (“Blue Diamond”) and Select Development & Construction, Inc. (“Select”). (Doc. 57.) Plaintiff Western Surety (“Western”) and Defendant United States of America have not opposed the motion.

         Blue Diamond, a South Dakota corporation, was served through the Arizona Corporation Commission on June 27, 2017 (Doc. 39-3), and has failed to appear or respond. Select was served through a statutory agent on June 14, 2017 (Doc. 39-1), and has also failed to appear or respond.

         The Clerk of Court may enter a default judgment if a party fails to plead or defend against an action. Fed.R.Civ.P. 55. Furthermore, an intervenor defendant may protect its interests by requesting default judgment. See e.g., Fid. & Guar. Life Ins. Co. v. Estate of Smith ex rei. Smith, No. CV-12-224-MTT, 2014 WL 652441, at *1 n.3 (M.D. Ga. Feb. 19, 2014) (“Although it is typically the plaintiff who requests default judgment, the right of a defendant in an interpleader action to do so is also recognized.”); see also Protective Live Ins. Co. v. Tinney, No. CV-14-02251-TMP, 2015 WL 1402464, at *4 (“Without the ability to enter a default judgment against an interpleader defendant who refuses to appear in the action, the court is unable to provide relief to the remaining defendants.”; Sun Life Assur. Co. of Canada v. Conroy, 431 F.Supp.2d 220, 226 (D. R.I. 2006) (“a named interpleader defendant who fails to answer the interpleader complaint and assert a claim to the res forfeits any claim of entitlement that might have been asserted.”). It has been over six months since Blue Diamond and Select were served and failed to respond.

         Service

         Federal Rule 4(h)(1) states, in pertinent part:

Unless federal law provides otherwise or the defendant's waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant . . .

Fed.R.Civ.P. 4(h)(1).

         Under Arizona law:

When serving a domestic corporation with no authorized officer or agent in Arizona, “the corporation may be served by depositing two copies of the summons and the pleading being served with the Arizona Corporation Commission. Following this ...

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