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Beitman v. Correct Clear Solutions

United States District Court, D. Arizona

April 10, 2019

Michael Lee Beitman, Plaintiff,
v.
Correct Clear Solutions, et al., Defendants.

          HONORABLE JAMES A. TEILBORG, SENIOR U.S. DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          Honorable Deborah M. Fine, United States Magistrate Judge.

         This matter is before the Court on Plaintiff's motion for entry of default judgment against Defendant Martin Gruenberg (Doc. 59) and the motion of Defendant Correct Care Solutions, LLC (“CCS”) to strike Plaintiff's motion at Doc. 59 and to set aside entry of default against Defendant Gruenberg (Doc. 61). A response and a reply have been filed (Docs. 62, 63). Plaintiff improperly filed a “Surresponse” (Doc. 65), which has been stricken (Doc. 66). The matter is ripe for decision. This case is on reference to undersigned for pretrial proceedings (Docs. 8, 64). Because the matters herein appear dispositive, undersigned has proceeded by report and recommendation rather than by order.

         I. Procedural History

         This is a prisoner civil rights case. The United States Marshal (“USM”) has responsibility to serve Defendants upon Plaintiff's compliance with the Court's prerequisites, such as filling out a service packet (see Doc. 8). After the Screening Order in this matter (Doc. 8), there were several substitutions of defendants including that Defendant Gruenberg was substituted for Defendant Martin on November 13, 2018 (Doc. 39).[1] From the First Amended Complaint, it appears that Defendant Gruenberg is a doctor and employee of CCS who provided services to Plaintiff while Plaintiff has been incarcerated in Arizona (Doc. 7).

         On January 16, 2019, a service return was filed regarding Defendant Gruenberg (Doc. 51; see Doc. 61). The deputy USM wrote on the proof of service regarding Defendant Gruenberg that Defendant Gruenberg had been served on January 10, 2019, by the deputy leaving the summons with a person (not Defendant Gruenberg), “who is designated by law to accept service of process on behalf of CCS” (Doc. 51 at 3). The address Plaintiff wrote on the service packet for Defendant Gruenberg appears to have been a CCS location in Centennial, Colorado (Doc. 51 at 1).

         Based on the service execution reflected in Doc. 51, Plaintiff applied for entry of default (Doc. 59), which the Clerk entered against Defendant Gruenberg on March 18, 2019 (Doc. 60). Plaintiff's motion also requests default judgment against Defendant Gruenberg (Doc. 59). Promptly after the Clerk's entry of default, Defendant Correct Care Solutions, through its counsel, filed a motion entitled “motion to strike motion for default judgment (Doc. 59) and to set aside entry of default (Doc. 60)” as such pertains to Defendant Gruenberg. Plaintiff responded in opposition, stating that service was proper at Defendant Gruenberg's employment address by leaving the summons with the person named in the return of service as having authority to accept service for Defendant CCS (Doc. 62).

         In addition, Plaintiff expressed frustration that counsel for Defendant CCS was not entering an appearance or expressly representing Defendant Gruenberg was nevertheless apparently acting on behalf of Defendant Gruenberg's interests (Doc. 62 at 2). Neither the motion to strike and set aside entry of default nor the reply in support thereof state whether counsel for Defendant CCS will represent Defendant Gruenberg when served, nor do either state that counsel for Defendant CCS will accept service for Defendant Gruenberg.

         II. Analysis

         There is some question as to whether Defendant CCS has standing to move to set aside the entry of default against a different defendant. See Gray v. John Jovino Co., 84 F.R.D. 46, 47 (E.D. Tenn. 1979). Nevertheless, “the court may set aside an entry of default for good cause.” Fed.R.Civ.P. 55(c). Further, here, Plaintiff has requested default judgment, so the Court must reach the issue of whether service was proper even in the absence of Defendant CCS' motion.

         Defendant CCS asserts that Plaintiff did not properly serve Dr. Gruenberg. Defendant CCS cites Rule 4(e) Fed. R. Civ. P., which states:

         Serving an Individual Within a Judicial District of the United States.

         Unless federal law provides otherwise, an individual-other than a minor, an incompetent person, or a person whose waiver has been filed-may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is ...

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