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Darby v. McDonald

United States District Court, District of Columbia

November 19, 2014

BARBARA DARBY, Plaintiff,
v.
ROBERT A. McDONALD, Secretary, U.S. DEPARTMENT OF VETERANS AFFAIRS, [1] Defendant.

MEMORANDUM OPINION & ORDER

RUDOLPH CONTRERAS, District Judge.

I. INTRODUCTION & FACTUAL BACKGROUND

Barbara Darby was employed as a Support Program Assistant by the Department of Veterans Affairs ("VA") when a dispute arose over the proper GS rating for her position, and Ms. Darby filed an employment discrimination complaint with the Equal Employment Opportunity Commission.[2] Def's Mot. Vacate at 2, ECF No. 3. Ms. Darby alleged that the VA discriminated against her when it denied her a career ladder promotion to the GS-9 level and reclassified Ms. Darby's position from Program Support Assistant to Secretary. Id. ; EEOC Appeal at 1, Ex. A, Mar. 15, 2013, ECF No. 3. The EEOC issued administrative findings that no discrimination had taken place. Def's Mot. Vacate at 2. Ms. Darby appealed and the EEOC upheld the initial finding of no discrimination. Def's Mot. Vacate at 2; EEOC Appeal at 4. The EEOC denied Ms. Darby's request for reconsideration and informed Ms. Darby of her right to file a civil action "in an appropriate United States District Court" within ninety days. EEOC Denial at 2, Ex. B, Sept. 5, 2013, ECF No. 3.

Ms. Darby filed suit in the Superior Court of the District of Columbia on December 9, 2013. Def's Mot. Vacate at 2; EEOC Appeal at 4. Her Complaint alleged "Requested Reconsideration Denied. Right to file civil action, " and included the Equal Employment Opportunity complaint number above her address. Compl., Dec. 9, 2013, ECF No. 1. Ms. Darby filed an Amended Complaint on February 25, 2014, listing attached "e-mail communication[s.]" Am. Compl., Feb. 25, 2014, ECF No. 1. The Superior Court held a number of conferences and hearings, during which the VA was not present or represented, and entered default against the VA on April 4, 2014. See Superior Court Docket, Ex. D, ECF No. 3. An attorney from the VA contacted the Superior Court judge to explain that the VA was represented by the Department of Justice in the matter. See Def's Mot. Vacate at 3. The VA then filed a notice of removal to this Court on June 18, 2014. See Superior Court Docket.

II. LEGAL STANDARD & ANALYSIS

This matter comes before the Court on the VA's motion to vacate the Superior Court's entry of default and to dismiss due to insufficiency of service of process, failure to state a claim, and lack of subject matter jurisdiction. Def's Mot. Vacate at 1. The VA argues that the Superior Court improperly entered default against it on the grounds that it was never properly served because Ms. Darby failed to serve the United States Attorney for the District of Columbia as required by the Superior Court Civil Rule 4(i), which mirrors Federal Rule of Civil Procedure 4(i). Def's Mot. Vacate at 11. Additionally, the VA argues that Ms. Darby's complaint does not assert her factual allegations in a manner sufficient to meet the required pleadings standard to survive a Rule 12(b)(6) motion to dismiss. Def's Mot. Vacate at 12. Lastly, the VA asserts that this Court does not have subject matter jurisdiction under the doctrine of derivative jurisdiction. Def's Mot. Vacate at 16.

For the reasons explained below, the Court grants the VA's motion to vacate the Superior Court's entry of default and to dismiss for insufficiency of process of service.[3]

A. Vacating Entry of Default

The Superior Court's entry of default in this case is treated as if it had been entered in a federal proceeding. See Butner v. Neustadter, 324 F.2d 783, 785-86 (9th Cir. 1963). This Court has previously held that "[t]o set aside the removed entry of default, the [district court] applies the same test used for defaults in federal courts." Potomac Elec. Power Co. v. China Const. Am. Inc., No. 09-111, 2009 WL 3163058, at *1 (D.D.C. Sept. 29, 2009) (citing Butner, 324 F.2d at 785-86). Under the Federal Rules of Civil Procedure, a district court can at its discretion vacate an entry of default pursuant to Rule 55(c) for "good cause shown[;]" the standard is more lenient than the standard for vacating a default judgment under Rule 60(b). Void-El v. O'Brien, 811 F.Supp.2d 255, 259 (D.D.C. 2011); Potomac Elec. Power Co., 2009 WL 3163058, at *1 (citing Jackson v. Beech, 636 F.2d 831, 835 (D.C.Cir.1980)). Generally, default is disfavored because courts have a "preference for resolving disputes on their merits." See Bennett v. United States, 462 F.Supp.2d 35, 38 (D.D.C.2006).

In deciding whether to set aside an entry of default, the court should consider "(1) whether the default was willful, (2) whether a set-aside would prejudice the plaintiff, and (3) whether the alleged defense is meritorious." Void-El v. O'Brien, 811 F.Supp.2d 255, 259 (D.D.C. 2011) (citing Keegel v. Key West & Caribbean Trading Co., Inc., 627 F.2d 372, 373 (D.C.Cir.1980)). In this case, the default was not willful, Ms. Darby would not be prejudiced, and the asserted defenses meet the meritorious standard.

It is undisputed that service of process, the procedural mechanism to provide a Defendant with notice of the claims against him, was not properly effected because Ms. Darby never served the United States Attorney for the District of Columbia. See Fed.R.Civ.P. 4(i); Super. Ct. Civ. R. 4(i); Def's Mot. Vacate, at 3. Insufficient service of process did not obligate the government to respond to the filing. See Void-El v. O'Brien, 811 F.Supp.2d 255, 259 (D.D.C. 2011). In fact, this Court has acknowledged that "[d]efault cannot be entered where there was insufficient service of process." Scott v. District of Columbia, 598 F.Supp.2d 30, 36 (D.D.C. 2009).

Addressing the first consideration, pursuant to Rule 4(i), which the applicable Superior Court Rule mirrors, "[s]ervice on the United States requires service on the Attorney General, the U.S. Attorney, and the agency whose action is at issue.... The United States is not "served" [and has no obligation to file any Answer or other pleading] until and unless all three entities are served[.]" Koerner v. United States, 246 F.R.D. 45, 48 (D.D.C. 2007). The government submitted a declaration by Daniel F. Van Horn, the Chief of the Civil Division of the United States Attorney's Office for the District of Columbia. Mr. Van Horn attests that as of June 23, 2014, the United States Attorney's Office had not been served. See Van Horn Declaration at 3, Ex. C, June 23, 2014, ECF No. 3. Ms. Darby has not rebutted the allegation of improper service and has not provided proof of proper service. As to the second consideration, Ms. Darby would not be prejudiced because a "[p]laintiff is not prejudiced where [she] did not comply with the [applicable] Rules." Void-El, 811 F.Supp.2d at 259. Turning to the third consideration, "[i]n determining the existence of a meritorious defense, likelihood of success is not the measure." Asia N. Am. Eastbound Rate Agreement v. BJI Indus., Inc., 900 F.Supp. 507, 511 (D.D.C. 1995). Instead, "[a party's] allegations are meritorious if they contain even a hint of a suggestion' which, if proven, would constitute a complete defense." Id. (internal citations omitted). "[E]ven broad and conclusory allegations meet the meritorious defense criterion for setting aside the default." Candido v. D.C., 242 F.R.D. 151, 157 (D.D.C. 2007) (citing Asia N. Am. Eastbound Rate Agreement, 900 F.Supp. at 511). The VA has submitted a motion to vacate and to dismiss that details four such defenses that meet the meritorious defense standard. See Def's Mot. Vacate at 9-11.

For these reasons, this Court vacates the entry of default. See Bennett, 462 F.Supp.2d at 38 (holding that good cause existed to set aside default because federal defendant was not properly served in accordance with Rule 4(i)); PEPCO v. China Constr. America Inc., 2009 WL ...


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