Olson v. Nevada, State Capitol

• Court: District Court, D. Nevada
• Decided: April 25, 2025
• Docket: 3:23-cv-00513
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4

5 HERBERT S. OLSON, Case No. 3:23-CV-00513-ART-CLB

6 Plaintiff, ORDER ON PLAINTIFF’S MOTION v. FOR DEFAULT JUDGMENT 7 (ECF No. 23) STATE OF NEVADA, STATE CAPITOL, 8 DEPT. OF ADMINISTRATION, STATE PUBLIC WORKS DIVISION, et al. 9 Defendant. 10 11 Plaintiff Herbert S. Olson, proceeding pro se, brings this action alleging that 12 violations of the American with Disabilities Act, Section 504 of the Rehabilitation 13 Act, and NRS 484B.467. Before the Court is Plaintiff’s Motion for Default 14 Judgment. (ECF No. 23.) For the reasons below, the Court DENIES this motion 15 and directs Plaintiff to properly serve Defendant. 16 I. BACKGROUND 17 On July 7, 2024, the Court granted Defendant’s motion to dismiss and gave 18 Plaintiff leave to amend to file a complaint against the proper defendant. (ECF 19 No. 17.) The Court also ordered Defendant to provide Plaintiff with the identity of 20 the proper Defendant. (Id.) Defendant identified the proper defendant as 21 “Department of Administration, State Public Works Division, Buildings & 22 Grounds Section.” (ECF No. 18.) On December 16, 2024, Plaintiff filed an 23 amended complaint listing “State of Nevada, State Capitol” and “Dept. of 24 Administration, State Public Works Division, et al.” as Defendants. (ECF No. 22.) 25 On January 27, 2025, Plaintiff filed a motion for default judgment against 26 Defendants. (ECF No. 23.) Defendant State of Nevada, Department of 27 Administration, State Public Works Division (“SPWD”) responded, arguing that it 28 has not been properly served and thus is not in default. (ECF No. 24.) 1 II. ANALYSIS 2 The Court denies Plaintiff’s motion for default judgment for two reasons. 3 First, Default has not been entered against Defendants, and second, Defendant 4 SPWD has not been properly served. 5 Federal Rule of Civil Procedure 55 requires a two-step process for default 6 judgment. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). First, a party 7 must seek a clerk’s entry of default under Rule 55(a), which is appropriate only 8 where a party “has failed to plead or otherwise defend.” BBK Tobacco & Foods, 9 LLP v. Aims Grp. USA Corp., 723 F. Supp. 3d 973, 981 (D. Nev. 2024) (quoting 10 Fed. R. Civ. P. 55(a)). Only after default has been entered may a party then move 11 the court for an entry of default judgment under Rule 55(b). Id. Here, Plaintiff 12 moved for default judgment, but default has not been entered by the clerk. 13 Accordingly, Plaintiff’s motion is premature. 14 Additionally, even if Plaintiff had moved for default under Rule 55(a), the 15 Court would deny this motion because the Defendant has not been properly 16 served. See Marty v. Green, No. 2:10-CV-01823, 2011 WL 320303, at *4 (E.D. Cal. 17 Jan. 28, 2011) (stating that the court would have denied motion for default 18 because defendants had not been properly served). A default judgment is void 19 where a defendant had not been properly served. Mason v. Genisco Tech. Corp., 20 960 F.2d 849, 851 (9th Cir. 1992) (default judgment is void where defendant was 21 not properly served). Here, Plaintiff states that he mailed the amended complaint 22 at ECF No. 22 to the Attorney General’s office. As discussed below, that is not 23 sufficient to effect service of process. The court therefore denies Plaintiff’s motion 24 for this reason as well. 25 III. SERVICE 26 Under Federal Rule of Civil Procedure 4, a Plaintiff may effectuate service 27 in two ways: 28 1 2 A state, a municipal corporation, or any other state- created governmental organization that is subject to suit 3 must be served by:

4 (A) delivering a copy of the summons and of the 5 complaint to its chief executive officer; or (B) serving a copy of each in the manner 6 prescribed by that state's law for serving a summons or like process on such a defendant 7 8 Fed. R. Civ. P. 4 (emphasis added). Thus, Plaintiff can properly serve Defendant 9 SPWD by either complying with Federal Rule of Civil Procedure 4(A), or by 10 complying with state law requirements for service of process on the state, outlined 11 below. 12 Nevada Revised Statute 41.031(2) provides that: 13 An action against the State of Nevada must be filed in the county where the cause or some part thereof arose 14 or in Carson City. In an action against the State of Nevada, the summons and a copy of the complaint 15 must be served upon: (a) The Attorney General, or a person designated 16 by the Attorney General, at the Office of the Attorney General in Carson City; and 17 (b) The person serving in the office of administrative head of the named agency 18 19 NRS 41.031(2) (emphasis added). Rule 4.2 of the Nevada Rules of Civil Procedure 20 provides nearly identical requirements for service of process:

21 The State and any public entity of the State must be served by delivering a copy of the summons and 22 complaint to: (A) the Attorney General, or a person designated 23 by the Attorney General to receive service of process, at the Office of the Attorney General in 24 Carson City; and (B) the person serving in the office of 25 administrative head of the named public entity, or an agent designated by the administrative head to 26 receive service of process. 27 Nev. R. Civ. P. 4.2 (emphasis added). The Court shall give Plaintiff sixty days, 28 until June 24, 2025, to properly serve Defendant SPWD. IV. Conclusion 2 It is therefore ordered that the Court grants Plaintiff until June 24, 2025, 3 || to provide proof of proper service upon the Defendant Department of 4 || Administration, State Public Works Division. 5 It is further ordered that Plaintiff's request for submission (ECF No. 25) is 6 || GRANTED. 7 It is further ordered that Plaintiffs motion for default judgment (ECF No. 8 || 23) is DENIED. 9 10 Dated this 25th day of April, 2025. 11 12 Ans . pod den 13 ANNE R. TRAUM 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28