United States District Court, D. Arizona
HONORABLE JAMES A. TEILBORG, SENIOR U.S. DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine, United States Magistrate Judge.
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.
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.
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).
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).
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).
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.
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 asserts that Plaintiff did not properly serve Dr.
Gruenberg. Defendant CCS cites Rule 4(e) Fed. R. Civ. P.,
an Individual Within a Judicial District of the United
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
(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 ...