United States District Court, D. Nevada
ORDER DENYING MOTION FOR ENTRY OF CLERK'S DEFAULT
[ECF NO. 6]
JENNIFER A. DORSEY U.S. DISTRICT JUDGE.
plaintiff David Frahn sues David Lee Phillips &
Associates, David Lee Phillips, and Charles
Brown for breach of contract and potentially for
deceptive trade practices and attorney
malpractice. Frahn asks that Phillips and Brown
"be impeached and sanctioned for violations of their
oaths as officers of the court" and that once "this
honorable court decides the extent of the crimes which the
Defendants may have committed, the Defendants be held liable
for damages under" 18 U.S.C. § 3571, which
prescribes criminal sentences of paying fines.
now moves, presumably under Federal Rule of Civil Procedure
55 and Local Rule 77-l(b)(2), for the entry of default
against "David Lee Phillips Esq. et
al." But Frahn has not demonstrated that Mr.
Phillips was properly served with process under FRCP 4(e).
Accordingly, Frahn's motion for entry of default is
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." In order to obtain the entry
of default, the plaintiff must show that (1) service was
properly effected on the defendant, and (2) the defendant
failed to respond within the time specified by the Federal
Rules of Civil Procedure.
appears that Frahn sues Phillips as an individual and his
firm David Lee Philips & Associates. FRCP 4(e) requires
that an individual be served by methods authorized by state
law or by (1) personally delivering a copy of the summons and
complaint to the individual; (2) leaving a copy at the
individual's dwelling with someone of suitable age and
discretion who resides there; or (3) delivering a copy of
each to an agent authorized by appointment or by law to
receive service of process.
motion appears to seek default only against Mr. Phillips. The
proof of service he attaches to his motion states that on
August 15, 2017, his process server served the summons
addressed to "DAVID LEE PHILLIPS ESQ. et al" on
David Lee Phillips & Associates'
"Secretary" who is allegedly designated by law to
accept service of process on behalf of the law office.
However, there is no evidence that the law office's
secretary is authorized to accept service on Mr.
Phillips's individualbehalf. Based on this
showing, I cannot conclude that service was properly made on
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 with prejudice against
that defendant or order that service be made within a
specified time." As Frahn has been previously notified, he
has until October 18, 2017, to effectuate proper and complete
service of each original summons and a copy of the complaint
on Mr. Brown, Mr. Phillips, and David Lee Phillips &
Associates in the manner required by law. Frahn must
separately serve each person and entity he identifies as a
defendant to properly effectuate service, and he must file
three separate proofs of service indicating that he has done
so. This means that he must serve both David Lee Phillips
& Associates and the individual David Lee Phillips
separately if he wishes to maintain a suit against both of
is cautioned that his pro se status will not be considered an
excuse or justification for future failures to comply with
the rules of this court. He is not relieved of his obligation
to comply with the rules and procedures of this court simply
because he has not retained an attorney to represent him. The
Ninth Circuit has repeatedly held that pro se litigants are
bound by the same rules as a represented party, and they will
not be treated more favorably or leniently than parties who
IT IS HEREBY ORDERED that Frahn's motion for entry of
default [ECF No. 6] is
has until October 18, 2017, to file proofs of service for all
of the defendants in this action If Frahn does not
complete service and file proofs of service by October 18,
2017, the claims against any unserved defendant will be
dismissed without further prior notice and without prejudice
under FRCP 4(m).