                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

BARBARA DARBY,                                  :
                                                :
       Plaintiff,                               :      Civil Action No.:      14-1032 (RC)
                                                :
       v.                                       :      Re Document Nos.:      3, 4
                                                :
ROBERT A. MCDONALD, Secretary,                  :
U.S. DEPARTMENT OF                              :
VETERANS AFFAIRS, 1                             :
                                                :
       Defendant.                               :

                          MEMORANDUM OPINION & ORDER

     GRANTING DEFENDANT’S MOTION TO VACATE ENTRY OF DEFAULT AND TO DISMISS

                    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

       1
              Pursuant to Federal of Civil Procedure 25(d), Secretary of the Department of
Veterans Affairs Robert A. McDonald is automatically substituted for former Secretary of the
Department of Veterans Affairs Eric Shinseki as the named Defendant in this action.
       2
              Ms. Darby does not provide copies of the initial EEOC Decision and Denial of
Reconsideration along with her Complaint, but rather only lists the EEOC complaint number on
her Complaint, so the Court relies on the copies furnished by the Department of Veterans Affairs
for summarizing the events which led to the dispute.
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




                                                  2
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)


       3
              Because this Court dismisses the action for insufficiency of process of service, the
Court does not address alternative grounds of dismissal raised by the VA. Specifically, the Court
does not address failure to state a claim and lack of subject matter jurisdiction.


                                                  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.




                                                 4
        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

3163058 at *1 (D.D.C. 2009) (vacating Superior Court default in removed case).

                        B. Dismissing for Defective Service of Process

       “Before a . . . court may exercise personal jurisdiction over a defendant, the procedural

requirement of service of summons must be satisfied.” Omni Capital Int’l, Ltd. v. Rudolf Wolff

& Co., 484 U.S. 97, 104 (1987). “A court ordinarily may not exercise personal jurisdiction over

a party named as a defendant in the absence of service of process (or waiver of service by the

defendant).” Graves v. Republic Nat’l Distrib. Co., No. 13-1869, 2014 WL 2000586, at *1

(D.D.C. May 16, 2014) (citing Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344,

350 (1999)). “Courts . . . have long held that a defendant’s removal of an action to federal court

does not waive the defendant’s objection to the sufficiency of service of process.” Graves, 2014




                                                 5
WL 2000586, at *2 (citing Morris & Co. v. Skandinavia Ins. Co., 279 U.S. 405, 409 (1929);

Cantor Fitzgerald, L.P. v. Peaslee, 88 F.3d 152, 157 n. 4 (2d Cir.1996)).

        Because “[f]ailure of service is a jurisdictional defect which is fatal[,]” Koerner v. United

States, 246 F.R.D. 45, 47–48 (D.D.C. 2007), “courts routinely dismiss actions when service is

improper.” Graves, 2014 WL 2000586, at *1. The Superior Court Civil Rule 4(m) establishes a

sixty day deadline after the filing of a complaint for a Plaintiff to serve a Defendant. Federal

Rule of Civil Procedure 4(m) provides both the time limit for service in district courts, i.e.

“within [one hundred twenty] days after the filing of the complaint,” and the consequences of

improper service. Fed. R. Civ. P. 4(m). Both the sixty and one hundred twenty day deadlines

have since passed.

        Pursuant to both Superior Court Civil Rule 4(i) and Federal Rule of Civil Procedure 4(i),

“service on the United States requires service on the Attorney General, the U.S. Attorney, and

the agency whose action is at issue. . . [and the] United States is not ‘served’ until and unless all

three entities are served[.]” Koerner, 246 F.R.D. at 48. The VA contends that Ms. Darby has

failed to effect proper service on the United States by not serving a copy of the summons and

complaint on the United States Attorney for the District of Columbia. See Def’s Mot. Vacate, at

3. As previously discussed, the VA has 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

attesting that the United States Attorney’s Office has not been served. See Van Horn Declaration

at 3.

        “The party on whose behalf service is made has the burden of establishing its validity

when challenged; to do so, he must demonstrate that the procedure employed satisfied the

requirements of the relevant portions of [Federal Rule of Civil Procedure 4] and any other




                                                  6
applicable provision of law.” Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir.1987) (internal

quotation omitted). Ms. Darby has not rebutted the allegation of improper service and has not

provided proof of proper service. “Although [p]ro se litigants are allowed more latitude than

litigants represented by counsel to correct defects in service of process and pleadings, this

consideration does not constitute a license for a plaintiff filing pro se to ignore the Federal Rules

of Civil Procedure[.]” Ning Ye v. Holder, 644 F. Supp. 2d 112, 115 (D.D.C. 2009) (internal

citations and quotations omitted).

       Pursuant to Rule 4(m), the Court can at its discretion dismiss Ms. Darby’s claims because

she neither effected service within 120 days after filing her complaint nor showed good cause for

this failure. Fed. R. Civ. P. 4(m). Alternatively, the Court can at its discretion “direct that

service be effected within a specified time.” Id. “Cases invoking [the] rule for non-incarcerated

pro se plaintiffs [that dismissal is not appropriate when there exists a reasonable prospect that

service can be obtained] . . . have involved good faith efforts to comply with complex service

rules.” Bloem v. Unknown Department of the Interior Employees, 2014 WL 946185, at *5

(D.D.C. 2014).

       Ms. Darby was put on notice that service was defective when the government filed its

motion to vacate entry of default and to dismiss. The docket does not indicate that Ms. Darby

has attempted to correct the deficiency in service in the five months since the VA filed its motion

including its deficiency in service claims. Additionally, the Court issued a Fox/Neal order on

October 1, 2014, warning Ms. Darby that failure to respond to arguments raised by the

government would result in these arguments being conceded. Fox/Neal Order, Oct. 10, 2014,

ECF No. 8. Ms. Darby responded with a memorandum that does not address the defect in




                                                  7
service or attempt to establish good cause to extend the time to serve the United States properly.

Def’s Mem., Oct. 20, 2014, ECF No. 9.

        In this case, the Court declines to allow Ms. Darby additional time to effect service and

dismisses the case without prejudice because Ms. Darby failed to serve the VA properly and has

not shown any additional efforts to comply with the applicable rules in the five months since

being notified of the deficient service. See Mann v. Castiel, 681 F.3d 368, 376 (D.C. Cir. 2012)

(upholding dismissal where pro se “plaintiffs had not been diligent in correcting the service

deficiencies; although alerted to their non-compliance with [the applicable rule] and the potential

for dismissal of the case nearly five months earlier, plaintiffs had taken no action to remedy their

non-compliance”).

                                        III. CONCLUSION

        For the reasons stated above, Defendant’s Motions to Vacate Entry of Default and To

Dismiss (ECF Nos. 3, 4) are GRANTED.

        It is hereby:

        ORDERED that the Superior Court of the District of Columbia’s Entry of Default dated

April 4, 2014, be VACATED; and it is

        FURTHER ORDERED that this case be DISMISSED without prejudice. 4

        SO ORDERED.


Dated: November 19, 2014                                              RUDOLPH CONTRERAS
                                                                      United States District Judge


        4
                 To the extent plaintiff attempts to refile this action, she must: file in the federal
district court (as required by Title VII); promptly serve the summons and complaint pursuant to
Fed. R. Civ. P. 4(i) on the VA, the Attorney General, and the United States Attorney for the
District of Columbia; and explain why the filing of this action should be considered to have
tolled the running of any expired statutes of limitations or otherwise applicable time limits.


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