United States District Court, D. Nevada
AYDIN T. ONER, Plaintiff,
CREDITORS SPECIALTY SERVICE, et al., Defendants.
M. Navarro, Chief Judge
before the Court is the Motion for Clerk's Entry of
Default, (ECF No. 4), filed by pro se Plaintiff Aydin T. Oner
(“Plaintiff”). For the reasons discussed below, the
Court DENIES Plaintiff's Motion.
February 17, 2016, Plaintiff filed his Complaint, (ECF No.
1), asserting violations of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692, et seq., and
the Nevada Deceptive Trade Practices Act, NRS § 598,
against Defendants Creditors Specialty Service aka Creditors
Specialty Service, Inc. and Tim Fuller (collectively
“Defendants”). Shortly thereafter, Plaintiff
filed the instant Motion for Clerk's Entry of Default,
(ECF No. 4), pursuant to Federal Rule of Civil Procedure
55(a). Plaintiff also filed documents indicating that on
March 19, 2016, service was effected on Defendants by
certified mail. (See ECF No. 6). Defendants have not
filed an answer or otherwise appeared.
clerk's entry of default is governed by Federal Rule of
Civil Procedure 55(a), which provides:
When a party against whom a judgment for affirmative relief
is sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must
enter the party's default.
Fed. R. Civ. P. 55(a).
prerequisite to entry of clerk's default, a plaintiff
must demonstrate that he properly effected service on the
defaulting party. See, e.g., Frederick v. Fed.
Nat. Mortg. Ass'n, No. 2:11-cv-00522-GMN, 2013 WL
2896960, at *5 (D. Nev. June 11, 2013). Under Federal Rule of
Civil Procedure 4(e), service may be effected by: (i)
following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where
the district court is located or where service is made; (ii)
delivering a copy of the summons and of the complaint to the
individual personally; (iii) leaving a copy of each at the
individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides there; or
(iv) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed.R.Civ.P. 4(e). Nevada law permits service on an
individual by any of the latter three methods authorized by
the federal rules. See Nev. R. Civ. P.
sent each Defendant a copy of the Summons by certified mail.
(See ECF No. 6). The Notice filed by Plaintiff does
not indicate whether Plaintiff included a copy of the
Complaint. (See id.). This does not comply with the
requirements for personal service under Federal Rule of Civil
Procedure Rule 4(e). Plaintiff has also not complied with
Rule 4(d)(6) of the Nevada Rules of Civil Procedure, which is
effectively identical to Federal Rule 4(e)(2). Consequently,
Plaintiff has failed to effect proper service on Defendants,
and an entry of clerk's default against Defendants is
light of this conclusion, the Court finds it appropriate to
require Plaintiff to show cause as to why this action should
not be dismissed without prejudice as to Defendants pursuant
to Federal Rule of Civil Procedure 4(m). Rule 4(m)
provides in pertinent part as follows:
If a defendant is not served within 90 days after the
complaint is filed, the court-on motion or on its own after
notice to the plaintiff-must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m). Failure to comply with this Order shall
result in automatic dismissal of the action without