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Battle-El v. Dep't of Veterans Affairs

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 24, 2008

KARAL HASANI EFIA BATTLE-EL, PLAINTIFF,
v.
DEPARTMENT OF VETERANS AFFAIRS, DEFENDANT.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING REQUEST FOR ENTRY OF DEFAULT WITHOUT PREJUDICE [doc. #6]

Plaintiff, appearing without counsel, submitted a civil complaint against the Department of Veterans Affairs and filed an application to proceed in forma pauperis ("IFP") under 28 U.S.C. § 1915 that the Court granted on December 21, 2007. [doc. #3]. By that Order, plaintiff was sent an "IFP Packet." The IFP Packet contains a conformed copy of the complaint and a copy of the Order granting the petition to proceed in forma pauperis. Also included in the IFP Packet are copies of the complaint, summons, and U.S. Marshal service forms. A letter from the Clerk of the Court accompanies these documents. The letter states in relevant part:

It is your responsibility to complete the Marshal 285 forms and mail them together with the complaint and summons to the U.S. Marshal's office at the address given below.

You must provide the U.S. Marshal with a complaint, summons, and Marshal service form for each defendant to be served. (Attachment to summons [doc. #4](emphasis added)).

Plaintiff filed a request for entry of default against defendant Department of Veterans Affairs. Plaintiff states in his proof of service/declaration of service that defendant Department of Veterans Affairs was served on January 9, 2008, and because it has not responded to the complaint within 60 days, he is entitled to default for defendant's failure to plead or otherwise defend.

Plaintiff's request will be denied without prejudice. Service upon a governmental agency, such as the Department of Veterans Affairs, requires service on the agency and also requires service of a copy of the summons and the complaint on the United States attorney for the district where the action is brought, and on the Attorney General of the United States at Washington, See FED. R. CIV. P. 4(i)(1)(A)(i) and (ii), 4(i)(1)(B), and 4(i)(2).

Because plaintiff has not demonstrated that service of process has been effectuated by the filing of a return of service on, the United States Attorneys' Office for the Southern District of California, and the Attorney General of the United States in addition to the Department of Veterans Affairs, plaintiff is not entitled to entry of default.

Accordingly, plaintiff's request for entry of default is DENIED without prejudice.

IT IS SO ORDERED.

20080324

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