Osorio v. Wilkie ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 MARICLAR OSORIO, Case No. 2:21-cv-00056-ART-DJA 6 Plaintiff, AMENDED ORDER 7 v. 8 ROBERT WILKIE, Secretary of U.S. Department of Veterans Affairs, 9 Defendant. 10 11 12 On September 30, this Court ordered Counsel for Defendants to enter an 13 appearance no later than October 14 to show cause for why this Court should 14 not instruct the Clerk to enter an order of default against Defendant. (ECF No. 15 15.) Defendant did not respond, and the Court ordered the Clerk to enter default 16 against Defendant. Because Defendant has not properly served a United States 17 agency according to Fed. R. Civ. P. 4(i), the Court will instruct the Clerk to 18 withdraw default and order Plaintiff to present evidence of proper service upon 19 the United States before proceeding further with the litigation. 20 Under Fed. R. Civ. P. 55(c), the Court may instruct the Clerk to withdraw 21 default upon good cause. The Court finds good cause in Plaintiff’s failure to serve 22 the United States according to Federal Rule of Civil Procedure 4(i). 23 This Court is responsible for ensuring that Plaintiff has adequately served 24 Defendants. Crowley v. Bannister, 734 F.3d 967, 975 (9th Cir. 2013). At the same 25 time, the federal rule governing service of process, Fed. R. Civ. P. 4, is "a flexible 26 rule that should be liberally construed.” Id. 27 Federal Rule of Civil Procedure 4(i) governs service of process for agencies 28 of the United States. Rule 4(i) instructs litigants as follows: 1 (i) Serving the United States and Its Agencies, Corporations, 2 Officers, or Employees. 3 (1) United States. To serve the United States, a party must: 4 (A)(i) deliver a copy of the summons and of the complaint to 5 the United States attorney for the district where the action is 6 brought--or to an assistant United States attorney or clerical 7 employee whom the United States attorney designates in a writing 8 filed with the court clerk--or 9 (ii) send a copy of each by registered or certified mail to the 10 civil-process clerk at the United States attorney's office; 11 (B) send a copy of each by registered or certified mail to the 12 Attorney General of the United States at Washington, D.C.; and 13 (C) if the action challenges an order of a nonparty agency or 14 officer of the United States, send a copy of each by registered or 15 certified mail to the agency or officer. 16 (2) Agency; Corporation; Officer or Employee Sued in an Official 17 Capacity. To serve a United States agency or corporation, or a United 18 States officer or employee sued only in an official capacity, a party must 19 serve the United States and also send a copy of the summons and of the 20 complaint by registered or certified mail to the agency, corporation, officer, 21 or employee. 22 (3) Officer or Employee Sued Individually. To serve a United States 23 officer or employee sued in an individual capacity for an act or omission 24 occurring in connection with duties performed on the United States' behalf 25 (whether or not the officer or employee is also sued in an official capacity), 26 a party must serve the United States and also serve the officer or employee 27 under Rule 4(e), (f), or (g). 28 (4) Extending Time. The court must allow a party a reasonable time to 1 cure its failure to: 2 (A) serve a person required to be served under Rule 4(i)(2), if the party 3 has served either the United States attorney or the Attorney General of the 4 United States; or 5 (B) serve the United States under Rule 4(i)(3), if the party has served 6 the United States officer or employee. 7 Liberally construing Rule 4 for a pro se litigant, courts must extend parties 8 || reasonable time to cure failure to properly serve agencies of the United States. 9 || See Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984); see also Fed. R. Civ. 10 || P. 4()(4). 11 Accordingly, the Court grants Plaintiff until Friday, December 27, 2024, to 12 || provide proof of proper service upon the Veterans Administration. 13 Additionally, the Court orders the Veterans Administration to enter an 14 || appearance upon actual notice of this order. 15 Additionally, the Court instructs the Clerk to withdraw default and strike 16 || ECF Nos. 16 and 17. 17 Dated this 30th day of October, 2024. 18 19 A> +s padi 20 OO ANNE R. TRAUM 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28