                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 KWAKU ATTAKORA,

    Plaintiff,
                                                         Civil Action No. 12-1413 (CKK)
           v.

 DISTRICT OF COLUMBIA, et al.,

    Defendants.


                                 MEMORANDUM OPINION
                                    (December 5, 2013)

       Plaintiff Kwaku Attakora filed suit against Defendants the District of Columbia and

Mannone A. Butler alleging the Defendants wrongfully terminated the Plaintiff’s employment

with the District on the basis of his national origin in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the District of Columbia Human Rights

Act, D.C. Code § 2-1403.01 et seq. The Plaintiff further alleges that the Defendants interfered

with and/or retaliated against the Plaintiff’s exercise of his rights under the Family and Medical

Leave Act (“FMLA”), 29 U.S.C. §2601 et seq.1 The Court granted in part the Defendant District

of Columbia’s motion to dismiss the Plaintiff’s Amended Complaint, and dismissed the

Plaintiff’s FMLA claim without prejudice. Presently before the Court is the Plaintiff’s [47]

Motion for Entry of Default against Defendant Mannone A. Butler on the basis that Defendant

Butler failed to answer or otherwise respond to the Plaintiff’s summons and complaint within 21

days of being served. Defendant District of Columbia filed an opposition to this motion arguing


       1
         In response to the Defendants’ motion to dismiss, the Plaintiff withdrew Counts Three
and Four of the Amended Complaint, alleging unlawful discrimination based on the Plaintiff’s
age.
that Defendant Butler was never properly served in this case.          Upon consideration of the

pleadings,2 the relevant legal authorities, and the record as a whole, the Court finds that

Defendant Butler was never properly served and never conceded service in this case.

Accordingly, the Plaintiff’s Motion for Entry of Default is DENIED.

                                       I. BACKGROUND

        The Plaintiff filed a Complaint in this case on August 27, 2012, against the District of

Columbia and Mannone A. Butler “in her individual capacity and as an agent or officer of

defendant District of Columbia.” See Complaint, ECF No. [1], at ¶ 9. On October 24, 2012, the

Plaintiff filed a Return of Service/Affidavit in which the process server averred that he served the

summons and complaint against Defendant Butler “on Tamekia McMahon on October 24, 2012

at 12:30 P.M. and Ms. McMahon stated that she was authorized by Ms. Butler to accept it.” See

ECF No. [5].

       On November 14, 2012, and November 30, 2012, the District of Columbia Attorney

General’s office filed Motions for Enlargement of Time to File an Answer or Otherwise Respond

to Plaintiff’s Complaint on behalf of Defendants District of Columbia and Defendant Butler,

which were silent as to the issue of service. See ECF Nos, [7], [8]. Thereafter, on December 7,

2012, Defendant District of Columbia, on its own behalf, filed a Motion to Dismiss for failure to

state a claim on which relief can be granted. See ECF No. [9]. In the District of Columbia’s

Motion to Dismiss, the District included a footnote stating:

       Plaintiff has named both the District and the Director of the Council, Mannone
       Butler, as defendants in this case. According to the proof of service filed by
       plaintiff [Doc. 5] Ms. Butler was served by leaving a copy of the summons and
       complaint with Tameka McMahon “who stated she was authorized by Ms. Butler
       to accept it.” In fact, Ms. McMahon was not authorized to accept service on

       2
           Pl.’s Mot., ECF No. [47]; Defs.’ Opp’n, ECF No. [49]; Pl.’s Reply, ECF No. [50].
                                                2
       Director Butler’s behalf. Because the arguments in this motion apply with equal
       force to Director Butler, she is not contesting service at this time. (emphasis
       added).

Shortly thereafter, the Plaintiff filed a Motion for Leave to File an Amended Complaint, which

the Court granted rendering the District of Columbia’s Motion to Dismiss moot. On January 22,

2013, the District of Columbia filed a Motion to Dismiss the Amended Complaint including,

once again, the above-quoted footnote. See ECF No. [19]. The Court granted in part and denied

in part the District of Columbia’s Motion to Dismiss. Subsequently, on July 22, 2013, the

District of Columbia, on its behalf only, filed an Answer to the Plaintiff’s Amended Complaint.

See ECF No. [37].

       On September 10, 2013, the Plaintiff filed a Motion for Additional Time to Serve

Defendant Mannone A. Butler because the proof of service incorrectly stated the date of service

and the Plaintiff understood that Defendant Butler was claiming that she was not properly served

with the summons and complaint. See ECF No. [44]. The Plaintiff did not concede, however,

that Defendant Butler was improperly served. The Court denied the Plaintiff’s Motion on the

basis that the Plaintiff was aware as early as December 7, 2012, that the District of Columbia

believed Defendant Butler had not been properly served, yet did not seek to extend the time in

which to serve Defendant Butler until eight months after the deadline for service had elapsed.

Subsequently, the Plaintiff filed the present Motion for Entry of Default against Defendant

Mannone A. Butler alleging that Defendant Butler had been properly served but did not file an

answer or otherwise respond to the Plaintiff’s Complaint within 21 days of service. See Pl.’s

Mot., ECF No. [47], at 1-2. The Plaintiff also effectively argues that Defendant Butler conceded

service because the District of Columbia, in its Motions for Extension of Time, represented to

the Court that the District of Columbia Office of Attorney General was acting on behalf of both

                                               3
Defendants and did not contest the service on Defendant Butler in its Motions to Dismiss it filed

on its own behalf. Pl.’s Reply, ECF No. [50], at 2-3. The District of Columbia responds that

Defendant Butler was not properly served because Ms. McMahon was not authorized to accept

service on her behalf and thus an entry of default is inappropriate. See Def.’s Opp’n, ECF No.

[49], at 3.

                                       II. DISCUSSION

        The Court rejects the Plaintiff’s argument that Defendant Butler was properly served as

well as the Plaintiff’s argument that Defendant Butler conceded service. The Plaintiff claims to

have properly served Defendant Butler when the process server gave the summons and

complaint to Ms. McMahon, an employee at Defendant Butler’s place of employment, who, the

Plaintiff alleges, stated that she was authorized to accept the summons and complaint on

Defendant Butler’s behalf. “’[C]laims by an agent of having authority to receive process or the

fact that an agent actually accepts process is not enough’ to satisfy the service requirements of

Rule 4(e)(2); ‘there must be evidence that the defendant[s] intended to confer that authority upon

the agent.’” Fenwick v. United States, 691 F. Supp. 2d 108, 113 (D.D.C. 2010) (quoting 4A

Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1097 (3d ed. 2002)); see

also Schwarz v. Thomas, 222 F.2d 305, 308 (D.C.Cir. 1955) (statements of alleged agent are not

sufficient evidence of authority to accept process). Even if Ms. McMahon did, as the process

server alleges, claim to be authorized to receive process for Defendant Butler, the Plaintiff has

produced no evidence demonstrating any intent on the part of Defendant Butler to authorize Ms.

McMahon to receive service on her behalf. See id. Ms. McMahon and Defendant Butler both

submitted sworn affidavits clearly stating that Defendant Butler “did not authorize Ms.

McMahon to accept service on [her] behalf.”         See Butler Decl., ECF No. [49-2], ¶ 6, 7;

                                                4
McMahon Decl., ECF No. [49-1], ¶ 8. The Plaintiff has presented no evidence controverting

these sworn statements. Consequently, the Plaintiff has not established that Defendant Butler

was properly served. See Chen v. District of Columbia, 256 F.R.D 263, 266 (D.D.C. 2009)

(“The law is clear that the party on whose behalf service is made has the burden of establishing

its validity when challenged.”) (citations omitted).

       Furthermore, the Court is not persuaded by the Plaintiff’s apparent argument that

Defendant Butler conceded service. The fact that the District of Columbia filed two motions on

behalf of Defendant Butler for extensions of time to respond to the Plaintiff’s Complaint is

inapposite. First, the two motions make no mention of service of process on Defendant Butler.

Filing a motion for extension of time to respond to a Complaint does not inherently concede

service since a proper response to a Complaint includes filing a Motion to Dismiss for failure to

properly serve. Moreover, Defendant Butler was sued in her individual capacity as well as her

official capacity. Until Defendant Butler has been personally served and requests the District of

Columbia to represent her, the District of Columbia does not have the right to speak on her

behalf. Furthermore, in the District of Columbia’s Motions to Dismiss, the District made clear in

the footnote that Defendant Butler had not been properly served. The fact that Defendant Butler

was not contesting service at that time because the arguments made in the motion applied with

equal force to her defense does not amount to a concession of service. Consistent with this

conclusion that Defendant Butler did not concede service, the District of Columbia’s eventual

Answer to the Complaint was filed on its behalf only.

       A Court may enter a default “when a party against whom a judgment for affirmative

relief is sought has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). As the Plaintiff

has failed to show that Defendant Butler was properly served or conceded service, Defendant

                                                 5
Butler had no obligation to file an Answer or otherwise respond to the Plaintiff’s Complaint. See

Fed. R. Civ. P 12(a)(1)(A) (a defendant must serve a responsive pleading within 21 days of being

served with the summons and complaint). Accordingly, the Court cannot enter a default against

Defendant Butler. See Carvajal v. Drug Enforcement Agency, 246 F.R.D. 374, 376 (D.D.C.

2007) (denying the plaintiff’s motion for default judgment on the basis that the plaintiff failed to

effect service of the defendant within the 120 day deadline); cf. Koerner v. United States, 246

F.R.D. 45, 47 (D.D.C. 2007) (finding good cause to vacate the entry of default because the

Plaintiff erred in effecting service on the Government and the Government thus had no

obligation to file an Answer); Baade v. Price, 175 F.R.D. 403, 406 (D.D.C. 1997) (setting aside

Clerk’s entry of default where defendant was not properly served).

                                      III. CONCLUSION

        For the reasons stated, the Court DENIES the Plaintiff’s [47] Motion for Entry of Default

as Defendant Butler was not properly served and thus had no obligation to file an Answer to the

Plaintiff’s Complaint. The Court further notes that the Plaintiff asked for an extension of time to

serve Defendant Butler on September 11, 2013, but the Court denied the request as eight months

had already passed since the Plaintiff should have served Defendant Butler and a discovery

scheduled had already been established by the Court. As the Court now finds that Defendant

Butler was not properly served and no default should be entered, it would appear that Defendant

Butler is not a proper party to this lawsuit going forward. An appropriate motion should be filed

to this effect.

        An appropriate Order accompanies this Memorandum Opinion.

                                                        /s/
                                                     COLLEEN KOLLAR-KOTELLY
                                                     UNITED STATES DISTRICT JUDGE

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