1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 KC Khamba, No. CV-26-00315-PHX-DWL (JFM)
10 Petitioner, ORDER
11 v.
12 John E Cantu, et al.,
13 Respondents. 14 15 Petitioner filed this action under 28 U.S.C. § 2241 challenging her immigration 16 detention. (Doc. 1.) On January 21, 2026, the Court directed Petitioner’s counsel to serve 17 Respondents and clarified that “Respondents must answer the Petition within 20 days of 18 the date of service.” (Doc. 5 at 3, emphasis omitted.) 19 As background, because Respondents in this action are officers and employees of 20 the United States being sued in their official capacities, service of process is governed by 21 Rule 4(i)(2) of the Federal Rules of Civil Procedure, which provides in relevant part that 22 “[t]o serve . . . a United States officer or employee sued only in an official capacity, a party 23 must serve the United States and also send a copy of the summons and of the complaint by 24 registered or certified mail to the agency, corporation, officer, or employee.” Id. As for 25 the requirement of serving the United States, the relevant provision is Rule 4(i)(1), which 26 provides in relevant part that “[t]o serve the United States, a party must . . . send a copy of 27 [the summons and complaint] by registered or certified mail to the civil-process clerk at 28 1 the United States attorney’s office; 1 [and] send a copy of each by registered or certified 2 mail to the Attorney General of the United States at Washington, D.C.” Id. In short, to 3 effect service in this case, Petitioner must do two things: (1) send a copy of the summons 4 and petition, by registered or certified mail, to each Respondent; and (2) send a copy of the 5 summons and petition, by registered or certified mail, to the civil process clerk of the 6 United States Attorney’s Office for the District of Arizona (“USAO”).2 7 On March 19, 2026, Petitioner filed a purported certificate of service. (Doc. 9.) It 8 indicated that Petitioner had (1) mailed the petition “and all accompanying papers” to each 9 Respondent “by U.S. Mail, postage prepaid”; (2) “served” certain Assistant United States 10 Attorneys (“AUSAs”) with an unspecified document or documents by sending them an 11 email; and (3) mailed an unspecified document or documents to the USAO by placing them 12 “in a sealed, postage-prepaid envelope and depositing it in the United States Mail.” (Id. at 13 2-3.) Petitioner also enclosed, as attachments, what appear to printouts from the “USPS 14 Tracking Plus” system (id. at 4) and a photograph showing that the mailing to the USAO 15 was sent via “Priority Mail Express” (id. at 9). 16 On April 8, 2026, the Court issued an order explaining that the purported certificate 17 of service was invalid because it did not establish that Respondents or the USAO had been 18 served via certified or registered mail, as Rule 4(i) requires. (Doc. 10.) The Court directed 19 Petitioner to either file supplemental documentation establishing proper service or to effect 20 service promptly. (Id.) 21 On April 13, 2026, Petitioner filed another purported proof of service. (Doc. 11.) 22 It indicates that on April 6, 2026—that is, two days before the issuance of the April 8, 2026
23 1 Rule 4(i)(1)(A) actually provides the option of either sending a copy of the complaint and summons by registered or certified mail to the civil-process clerk at the 24 United States Attorney’s Office or personally serving the United States Attorney (or designee). Because there is no indication in this case that Petitioner has ever attempted (let 25 alone completed) such personal service, the analysis here focuses on the other option. 26 2 Although Rule 4(i)(1)(B) provides that service on the United States also requires service by registered or certified mail to the Attorney General, one of the named 27 Respondents in this case is the Attorney General. Thus, complying with the service requirement set forth in Rule 4(i)(2) (i.e., “send a copy of the summons and of the 28 complaint by registered or certified mail to the agency, corporation, officer, or employee”) will also satisfy Rule 4(i)(1)(B) here. 1 order identifying the deficiencies in the earlier service efforts—Petitioner mailed “the 2 foregoing document” (which is not identified) to the USAO by placing it “in a sealed, 3 postage-prepaid envelope and depositing it in the United States Mail.” (Id. at 2.) The proof 4 of service does not, in contrast, provide any information about further attempts to serve 5 Respondents. (Id.) Petitioner also enclosed, as an attachment, two documents. The first 6 is what appears to a printout from the “USPS Tracking Plus” system showing that an 7 unspecified item was delivered to an unspecified address in Phoenix on April 6, 2026. (Id. 8 at 3.) The second is an email exchange dated April 7, 2026 between Petitioner’s counsel 9 and an AUSA. (Id. at 4.) The initial email from Petitioner’s counsel includes an assertion 10 that “[o]ut of an abundance of caution, we also sent an additional copy via certified mail, 11 which was delivered on April 6, 2026 (please see the attached tracking confirmation).” 12 (Id.) The response email from the AUSA states: “Yes, we were served and we will respond 13 according to the court order. Just for future reference, . . . FRCP 4(i) requires you to serve 14 the United States via certified or registered mail or personal service. The court sends us 15 the petitions and orders but that does not constitute service. That is done as a precautionary 16 measure.” (Id.) 17 On May 12, 2026, Petitioner filed an application for entry of default. (Doc. 12.) On 18 May 13, 2026, the Clerk’s office granted the application and entered the default. (Doc. 19 13.) 20 The default must be vacated because Petitioner still has not properly effected 21 service. See, e.g., Kawall v. New Jersey, 678 F. App’x 86, 87 (3d Cir. 2017) (“Default may 22 be properly entered only against a party who has been properly served.”). In the April 8, 23 2026 order, the Court explained why Petitioner’s initial proof of service was insufficient 24 and identified the two steps Petitioner still needed to complete—specifically, (1) mailing 25 the petition and summons to the USAO by certified or registered mail; and (2) mailing the 26 petition and summons to each Respondent by certified or registered mail. (Doc. 10.) 27 Nevertheless, it does not appear that Petitioner made any further service efforts following 28 the issuance of that order. Instead, two days before the issuance of that order, Petitioner 1 simply remailed an unspecified document to the USAO. Petitioner’s certificate of service 2 regarding that mailing (Doc. 11) fails to establish that Petitioner effected service on the 3 USAO via certified or registered mail in the manner that Rule 4(i) requires. See also 4 Raniere v. Garland, 644 F. Supp. 3d 554, 559 (D. Ariz. 2022) (“Plaintiff has not shown 5 that he sent the FAC and Summons to each Defendant sued in an official capacity by 6 registered or certified mail as required by Federal Rule of Civil Procedure 4(i)(2). None 7 of the USPS Tracking printouts that Plaintiff filed in Doc. 23 indicate if the items delivered 8 were sent via certified or registered mail, who they were addressed to, or even the complete 9 addresses of the recipients.”); Soltan v. Federal Deposit Ins. Corp., 2009 WL 10699411, 10 *4 (C.D. Cal. 2009) (concluding that “Soltan has not complied with Rule 4(i)” where “the 11 proofs of service on file with the court . . .
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 KC Khamba, No. CV-26-00315-PHX-DWL (JFM)
10 Petitioner, ORDER
11 v.
12 John E Cantu, et al.,
13 Respondents. 14 15 Petitioner filed this action under 28 U.S.C. § 2241 challenging her immigration 16 detention. (Doc. 1.) On January 21, 2026, the Court directed Petitioner’s counsel to serve 17 Respondents and clarified that “Respondents must answer the Petition within 20 days of 18 the date of service.” (Doc. 5 at 3, emphasis omitted.) 19 As background, because Respondents in this action are officers and employees of 20 the United States being sued in their official capacities, service of process is governed by 21 Rule 4(i)(2) of the Federal Rules of Civil Procedure, which provides in relevant part that 22 “[t]o serve . . . a United States officer or employee sued only in an official capacity, a party 23 must serve the United States and also send a copy of the summons and of the complaint by 24 registered or certified mail to the agency, corporation, officer, or employee.” Id. As for 25 the requirement of serving the United States, the relevant provision is Rule 4(i)(1), which 26 provides in relevant part that “[t]o serve the United States, a party must . . . send a copy of 27 [the summons and complaint] by registered or certified mail to the civil-process clerk at 28 1 the United States attorney’s office; 1 [and] send a copy of each by registered or certified 2 mail to the Attorney General of the United States at Washington, D.C.” Id. In short, to 3 effect service in this case, Petitioner must do two things: (1) send a copy of the summons 4 and petition, by registered or certified mail, to each Respondent; and (2) send a copy of the 5 summons and petition, by registered or certified mail, to the civil process clerk of the 6 United States Attorney’s Office for the District of Arizona (“USAO”).2 7 On March 19, 2026, Petitioner filed a purported certificate of service. (Doc. 9.) It 8 indicated that Petitioner had (1) mailed the petition “and all accompanying papers” to each 9 Respondent “by U.S. Mail, postage prepaid”; (2) “served” certain Assistant United States 10 Attorneys (“AUSAs”) with an unspecified document or documents by sending them an 11 email; and (3) mailed an unspecified document or documents to the USAO by placing them 12 “in a sealed, postage-prepaid envelope and depositing it in the United States Mail.” (Id. at 13 2-3.) Petitioner also enclosed, as attachments, what appear to printouts from the “USPS 14 Tracking Plus” system (id. at 4) and a photograph showing that the mailing to the USAO 15 was sent via “Priority Mail Express” (id. at 9). 16 On April 8, 2026, the Court issued an order explaining that the purported certificate 17 of service was invalid because it did not establish that Respondents or the USAO had been 18 served via certified or registered mail, as Rule 4(i) requires. (Doc. 10.) The Court directed 19 Petitioner to either file supplemental documentation establishing proper service or to effect 20 service promptly. (Id.) 21 On April 13, 2026, Petitioner filed another purported proof of service. (Doc. 11.) 22 It indicates that on April 6, 2026—that is, two days before the issuance of the April 8, 2026
23 1 Rule 4(i)(1)(A) actually provides the option of either sending a copy of the complaint and summons by registered or certified mail to the civil-process clerk at the 24 United States Attorney’s Office or personally serving the United States Attorney (or designee). Because there is no indication in this case that Petitioner has ever attempted (let 25 alone completed) such personal service, the analysis here focuses on the other option. 26 2 Although Rule 4(i)(1)(B) provides that service on the United States also requires service by registered or certified mail to the Attorney General, one of the named 27 Respondents in this case is the Attorney General. Thus, complying with the service requirement set forth in Rule 4(i)(2) (i.e., “send a copy of the summons and of the 28 complaint by registered or certified mail to the agency, corporation, officer, or employee”) will also satisfy Rule 4(i)(1)(B) here. 1 order identifying the deficiencies in the earlier service efforts—Petitioner mailed “the 2 foregoing document” (which is not identified) to the USAO by placing it “in a sealed, 3 postage-prepaid envelope and depositing it in the United States Mail.” (Id. at 2.) The proof 4 of service does not, in contrast, provide any information about further attempts to serve 5 Respondents. (Id.) Petitioner also enclosed, as an attachment, two documents. The first 6 is what appears to a printout from the “USPS Tracking Plus” system showing that an 7 unspecified item was delivered to an unspecified address in Phoenix on April 6, 2026. (Id. 8 at 3.) The second is an email exchange dated April 7, 2026 between Petitioner’s counsel 9 and an AUSA. (Id. at 4.) The initial email from Petitioner’s counsel includes an assertion 10 that “[o]ut of an abundance of caution, we also sent an additional copy via certified mail, 11 which was delivered on April 6, 2026 (please see the attached tracking confirmation).” 12 (Id.) The response email from the AUSA states: “Yes, we were served and we will respond 13 according to the court order. Just for future reference, . . . FRCP 4(i) requires you to serve 14 the United States via certified or registered mail or personal service. The court sends us 15 the petitions and orders but that does not constitute service. That is done as a precautionary 16 measure.” (Id.) 17 On May 12, 2026, Petitioner filed an application for entry of default. (Doc. 12.) On 18 May 13, 2026, the Clerk’s office granted the application and entered the default. (Doc. 19 13.) 20 The default must be vacated because Petitioner still has not properly effected 21 service. See, e.g., Kawall v. New Jersey, 678 F. App’x 86, 87 (3d Cir. 2017) (“Default may 22 be properly entered only against a party who has been properly served.”). In the April 8, 23 2026 order, the Court explained why Petitioner’s initial proof of service was insufficient 24 and identified the two steps Petitioner still needed to complete—specifically, (1) mailing 25 the petition and summons to the USAO by certified or registered mail; and (2) mailing the 26 petition and summons to each Respondent by certified or registered mail. (Doc. 10.) 27 Nevertheless, it does not appear that Petitioner made any further service efforts following 28 the issuance of that order. Instead, two days before the issuance of that order, Petitioner 1 simply remailed an unspecified document to the USAO. Petitioner’s certificate of service 2 regarding that mailing (Doc. 11) fails to establish that Petitioner effected service on the 3 USAO via certified or registered mail in the manner that Rule 4(i) requires. See also 4 Raniere v. Garland, 644 F. Supp. 3d 554, 559 (D. Ariz. 2022) (“Plaintiff has not shown 5 that he sent the FAC and Summons to each Defendant sued in an official capacity by 6 registered or certified mail as required by Federal Rule of Civil Procedure 4(i)(2). None 7 of the USPS Tracking printouts that Plaintiff filed in Doc. 23 indicate if the items delivered 8 were sent via certified or registered mail, who they were addressed to, or even the complete 9 addresses of the recipients.”); Soltan v. Federal Deposit Ins. Corp., 2009 WL 10699411, 10 *4 (C.D. Cal. 2009) (concluding that “Soltan has not complied with Rule 4(i)” where “the 11 proofs of service on file with the court . . . indicate that Soltan mailed copies of the 12 summons and complaint via priority mail, not certified or registered mail”). Additionally, 13 there is no indication that Petitioner ever made a second attempt to serve each Respondent 14 (let alone serve each Respondent via certified or registered mail, as Rule 4(i) requires). 15 A potential wrinkle is the April 7, 2026 email from the AUSA, which includes the 16 statement “we were served and we will respond according to the court order.” (Doc. 11 at 17 4.) But that email does not change the default analysis. To the extent that email was 18 intended to function as proof of a waiver of service by Respondents, “Rule 4 waiver of 19 service does not play a role in litigation against the national government,” Tuke v. United 20 States, 76 F.3d 155, 156 (7th Cir. 1996), and Petitioner’s submission does not, at any rate, 21 contain all of the information necessary to request a valid waiver under Rule 4(d). 22 The bottom line is that “one becomes a party officially, and is required to take action 23 in that capacity, only upon service of a summons or other authority-asserting measure 24 stating the time within which the party served must appear and defend. A defendant has 25 no obligation to appear in court or defend an action before it is formally served with process 26 directing it to appear before that forum.” Thompson v. Deutsche Bank Nat. Trust Co., 775 27 F.3d 298, 303 (5th Cir. 2014) (cleaned up). See also Sitthidet v. First Horizon Home Loans, 28 633 F. App’x 407, 408 (9th Cir. 2016) (“The district court did not abuse its discretion in 1 || denying the Sitthidets’ request for entry of default because the Sitthidets failed to file 2|| proofs of service with the district court and did not comply with the local rules.”). Of || course, the USAO appears to be fully aware of this action, and nothing would prevent the USAO from voluntarily appearing in this action on Respondents’ behalf and responding to 5 || the petition even in the absence of formal service (which was apparently the USAO’s plan 6 || at one time, per the April 7, 2026 email from the AUSA), but the record in its present state 7 || simply does not support the entry of a default. 8 Accordingly, 9 IT IS ORDERED that: 10 1. The default (Doc. 13) is vacated. 11 2. The deadline for Petitioner to properly effect service 1s sua sponte extended || to May 29, 2026. 13 3. Respondents must respond to the petition within seven (7) days of service. 14]| Petitioner may file a reply within seven (7) days of the response 15 4. The Clerk of Court must immediately transmit by email a copy of this Order tothe United States Attorney for the District of Arizona, to the attention of Melissa Kroeger || at melissa.kroeger@usdo}j.gov, Lon Leavitt at lon.leavitt@usdoj.gov, Theo Nickerson at 18 || Theo.Nickerson2@usdoj.gov, Dina Anagnopoulos at Dina.Anagnopoulos@usdoj.gov, and Mary Finlon at □□□□□□□□□□□□□□□□□□□□□□ 20 Dated this 15th day of May, 2026. 21
Dominic W, Lanza 24 United States District Judge 25 26 27 28
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