UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Joy Gordon,

Plaintiff, Case No. 21-10155

v. Judith E. Levy United States District Judge United States of America, United States Postal Service, Mag. Judge Kimberly G. Altman

Defendants.

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ORDER GRANTING DEFENDANTS’ MOTION TO SET ASIDE CLERK’S ENTRY OF DEFAULT [8]

Plaintiff brings this Federal Tort Claim Act (FTCA) lawsuit for money damages after Plaintiff Joy Gordon slipped and fell on a wet substance in the Grosse Pointe Farms Post Office due to Defendants’ alleged negligence. (ECF No. 1.) On March 26, 2021, Plaintiff filed a proof of service evidencing service of the summons and complaint on the United States Postal Service. (ECF No. 4.) To date, Plaintiff has not filed proof of service evidencing service of the summons and complaint on the United States Attorney’s Office, as is required in FTCA cases. See Fed. R. Civ. P. 12(a). On May 12, 2021, Plaintiff requested a clerk’s entry for default judgment against Defendants after Defendants failed to plead or

otherwise respond to the lawsuit within 60 days of filing the complaint. (ECF No. 5.) The Clerk’s Office subsequently granted the default. (ECF

No. 6.) On May 24, 2021, Defendants filed a motion to set aside the clerk’s entry of default, arguing that default was improperly entered because the United States had not missed their deadline for answering the complaint:

the 60-day time period in which the United States must answer the complaint does not begin running until the United States Attorney’s Office is served. (ECF No. 8, PageID.27.)

Defendants are correct and the motion is GRANTED. The Court may set aside an entry of default for “good cause.” Fed. R. Civ. P. 55(c). Typically, the Court considers three factors when determining whether

good cause exists: 1) whether the plaintiff will be prejudiced; 2) whether the defendant has a meritorious defense; and 3) whether culpable conduct of the defendant led to the default. United Coin Meter Co., Inc. v.

Seaboard Coastline R.R.,

(6th Cir. 1983). However, the Court need not reach the three-factor analysis in this case, because “there must be effective service of process on a defendant before an entry of default can be made. Without proper service of process, the district court is without jurisdiction to make an entry of default against a defendant

pursuant to Rule 55(a).” Sandoval v. Bluegrass Regional Mental Health- Mental Retardation Board,

, at *5 (6th Cir. 2000) (citing

10A Wright, Miller & Kane, Fed. Prac. & Proc. Civ. 3d § 2682); see also Mosley v. Faurecia Automotive Seating, Inc., No. 08-10130,

, at *3-4 (E.D. Mich. May 1, 2008) (“Given that plaintiff failed to

serve the summons and complaint properly . . . the entry of default should be set aside, regardless of the three-factor analysis.”) (emphasis in original).

Federal Rule of Civil Procedure 12 does not require that the United States respond to the complaint in this case until “60 days [have elapsed] after service on . . . the United States attorney.” Fed. R. Civ. P. 12(a)(2-

3). Because Plaintiff has not yet served the United States Attorney’s Office, this 60-day clock has not yet begun running. See

Accordingly, the clerk’s entry of default—which was granted because Defendants in

this case “fail[ed] to plead or otherwise defend”—was entered in error. (See ECF No. 6.) The Court accordingly finds good cause to set it aside under Federal Rule 55(a). Sandoval,

, at *5. IT IS SO ORDERED. Dated: May 26, 2021 s/Judith E. Levy Ann Arbor, Michigan JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on May 26, 2021.

s/William Barkholz WILLIAM BARKHOLZ Case Manager