The opinion of the court was delivered by: Magistrate Judge Mona K. Majzoub
DISTRICT JUDGE DAVID M. LAWSON
REPORT AND RECOMMENDATION
This Court recommends that Defendant's Motion to Set Aside Default (docket no. 14) be GRANTED, and Plaintiff's Motion for Default Judgment (docket no. 20) be DENIED.
This Court further recommends that this case be sua sponte dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) because the complaint is frivolous and fails to state a claim upon which relief can be granted.
In light of the above recommendations, Defendant's Motion to Dismiss (docket no. 15), Plaintiff's Motion for Judge's Decision (docket no. 17), Plaintiff's Motion Regarding Closing Argument (docket no. 18), and Plaintiff's Motion to Append (docket no. 19) should be denied as moot without prejudice to the motions being reconsidered should the above recommendations not be adopted.
These matters come before the Court on two motions. The first is Defendant's Motion to Set Aside Default, filed on November 12, 2009. (Docket no. 14). Plaintiff has filed a response. (Docket no. 16). The second motion is Plaintiff's Motion for Default Judgment, filed on February 9, 2010. (Docket no. 20). Defendant did not file a response and the time for responding has expired. The case had been referred to the undersigned for general case management. (Docket no. 3). The Court dispenses with oral argument on the motions pursuant to E.D. Mich. LR 7.1(e). These matters are now ready for ruling.
The Clerk's Entry of Default
Plaintiff filed this pro se action on July 2, 2009, alleging that the Defendant failed to provide him with a copy of his administrative hearing record causing him to miss the deadline for filing an appeal of the Administrative Law Judge's (ALJ) decision terminating his State Disability Assistance (SDA) benefits. (Docket no. 1). On November 10, 2009, at Plaintiff's request, a Clerk's Entry of Default was entered. (Docket no. 12). Defendant moves to set aside the default under Federal Rule of Civil Procedure 55(c) on the grounds that it has not been served in accordance with Federal Rule of Civil Procedure 4(j)(2), it has a meritorious defense to the action, and Plaintiff will not be prejudiced if the default is set aside. (Docket no. 14). Plaintiff moves for entry of a default judgment on the grounds that the Defendant has access to CM/ECF, has been served a copy of each motion, and has had more than the allotted amount of time to respond to Plaintiff's complaint. (Docket no. 20).
Federal Rule of Civil Procedure 55(c) permits the Court to set aside an entry of default for good cause. Generally, three equitable factors are considered to determine whether good cause has been shown: "(1) whether culpable conduct of the defendant led to the default; (2) whether the defendant has a meritorious defense; and (3) whether the plaintiff will be prejudiced." Burrell v. Henderson, 434 F.3d 826, 831 (6th Cir. 2006) (quotation marks and citation omitted). "Due process requires proper service of process for a court to have jurisdiction to adjudicate the rights of the parties. . . . Therefore, if service of process was not proper, the court must set aside an entry of default," and may do so without weighing the three factors set forth above. O.J. Distrib., Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 353-55 (6th Cir. 2003) (citations omitted). Actual knowledge of a lawsuit does not cure a technically defective service of process. LSJ Inv. Co., Inc. v. O.L.D. Inc., 167 F.3d 320, 322 (6th Cir. 1999).
Defendant alleges that it was not properly served with the summons and complaint. Plaintiff filed this action on July 2, 2009 and served a copy of the summons and complaint on Mike Cox, Michigan Office of Attorney General in Lansing, Michigan on October 15, 2009. (Docket nos. 1, 10). Federal Rule of Civil Procedure 4(j)(2)(A) provides that service of a state governmental agency must be made by delivering a copy of the summons and complaint to its chief executive officer, in this case the Director of the Michigan Department of Human Services.
As an alternative, subsection (2)(B) of Rule 4(j) provides that service may be made in accordance with state law. MCR 2.105(G) governs service of process on public corporations, and provides that service of process is made by serving the summons and complaint on those officials listed in the court rule. The Michigan Attorney General is not listed as a person who may be lawfully served under MCR 2.105(G).
The Defendant was not properly served in accordance with Federal Rule of Civil Procedure 4(j)(2) and MCR 2.105(G). Accordingly, the entry of default should be set aside and a ...