Hart v. Varnell

• Court: District Court, E.D. Washington
• Decided: May 15, 2020
• Docket: 4:19-cv-05007
• Status: Unknown

Opinion

1 FILED IN THE EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 2 May 15, 2020

3 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON 4 JASON MARK HART, No. 4:19-cv-05007-SMJ 5 Plaintiff, ORDER DENYING RENEWED 6 MOTIONS FOR DEFAULT v. JUDGMENT 7 DR. DANIEL VARNELL, DR. 8 PATRICIA ZIESLER, CMHPM CRYSTAL CONTRERAS, DR. MARY 9 PETERSON, DR. ERIC RAINEY- GIBSON, DR. BRUCE GAGE, DR. 10 ROD PETERSON, DR. KARIE RAINER, and JOHN OR JANE DOES, 11 Defendants. 12

13 Before the Court, without oral argument, are pro se Plaintiff Jason Mark 14 Hart’s “Affidavit of Default Judgment,” ECF No. 60, and “Motion to Supplement 15 Construed Default Judg[]ment Motion,” ECF No. 62. In the first motion, ECF 16 No. 60, Plaintiff again moves for default judgment against Defendant Daniel 17 Varnell, M.D., a request the Court earlier denied. See ECF Nos. 57, 60. In the 18 second motion, the Court understands Plaintiff wishes to include allegations that 19 Dr. Varnell is attempting to evade service. See ECF No. 62 at 3. Plaintiff also 20 attaches what appear to be his own mental health records, though it is not clear 1 what purpose Plaintiff intended for these records to serve. See id. at 4–6. 2 Default judgment by the Clerk is only available “against a defendant who

3 has been defaulted for not appearing” under Rule 55(a). Fed. R. Civ. P. 55(b). 4 Further, default judgment is not available as to a defendant who has not been 5 served. See Fed. R. Civ. P. 55(a)–(b); see also Hicks v. Kuula, No. 05-5137 FDB,

6 2005 WL 8173059, at *1 (W.D. Wash. Aug. 3, 2005) (“It is axiomatic that service 7 of process must be effective under the Federal Rules of Civil Procedure before a 8 default or a default judgment may be entered against a defendant.”). 9 Plaintiff has still not sought entry of default as to Dr. Varnell, and Dr.

10 Varnell still has not been served in this matter. Though Plaintiff appears to allege 11 Dr. Varnell is evading service, he includes no facts in support of that claim, and 12 the Court has not received any indication to that effect from the U.S. Marshals

13 Service, who is presently attempting to serve Dr. Varnell.1 See ECF No. 47. Entry 14 of default or default judgment are therefore inappropriate at this time. See Fed. R. 15 1 Furthermore, “before a default can be entered, the Court must have jurisdiction 16 over the party against whom default judgment is sought, which also means that party must have been effectively served with process.” Wood v. Santa Barbara 17 Chamber of Commerce, Inc., 507 F. Supp. 1128, 1145 (D. Nev. 1980) (citations omitted). That a defendant is evading service does not excuse this requirement, 18 though it may permit the plaintiff to effect service through alternative means. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (holding due 19 process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an 20 opportunity to present their objections”); see also Fed. R. Civ. P. 4(e) (describing permitted methods of service within judicial district of United States). 1 || Civ. P. 55(a). 2 Accordingly, IT IS HEREBY ORDERED: 3 Plaintiff's “Affidavit of Default Judgment,” ECF No. 60, and “Motion 4 to Supplement Construed Default Judg[]ment Motion,” ECF No. 62, are

5 DENIED.

6 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order

7 provide a copy to pro se Plaintiff and all counsel. 8 DATED this 15th day of May 2020. 9 Sabaneta VADOR MEND@ 2A, JR. 10 United States District Ju@ge 11 12 13 14 15 16 17 18 19 20

ORDER DENYING RENEWED MOTIONS FOR DEFAULT JUDGMENT — 3