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Wold v. Robart

United States District Court, E.D. Wisconsin

February 28, 2018

MATT WOLD and NORM WOLD, Plaintiffs,
v.
HON. JAMES ROBART, Defendant.

          ORDER DENYING PLAINTIFFS'S MOTION FOR ENTRY OF DEFAULT (DKT. NO. 10), GRANTING DEFENDANT'S MOTION TO DISMISS (DKT. NO. 6) AND DISMISSING CASE

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         On February 23, 2017, the plaintiffs filed this case against Judge James Robart of the United States District Court for the Western District of Washington, after Judge Robart temporarily enjoined and restrained the nationwide enforcement of sections of Executive Order 13769 (First Executive Order) entitled “Protecting the Nation from Foreign Terrorist Entry in the United States.” Dkt Nos. 1, 7-3. The plaintiffs assert that Judge Robart's ruling “disparaged” their “individual rights protected by the Ninth Amendment to the U.S. Constitution.” Dkt. No. 1 at 2. They seek injunctive relief “commanding defendant to rescind the nationwide temporary restraining order of President Trump's executive order.”[1] Dkt. No. 1 at 4. After the defendant filed a motion to dismiss the case, dkt. no. 6, the plaintiffs filed a motion for entry of default, dkt. no. 10. Because the court cannot grant the relief requested, it will dismiss the case.

         I. Background

         Three days after President Trump signed the First Executive Order, the State of Washington filed a complaint for declaratory and injunctive relief in the Western District of Washington, challenging the order as unconstitutional. State of Washington v. Trump, No. 17-cv-141 (W.D. Wash.), Dkt. No. 1. The State of Minnesota joined as a plaintiff, and both states moved to temporarily enjoin the enforcement of the First Executive Order. Id. at Dkt. No. 18. On February 3, 2017, Judge Robart granted the states' motion “on a nationwide basis, ” temporarily enjoining sections 3(c) and 5(a)-(c), and section 5(e) to the extent it “purports to prioritize refugee claims of certain religious minorities” and prohibited the government from “proceeding with any action that prioritizes the refugee claims of certain religious minorities.” Id. at Dkt. No. 52.

         The defendants appealed Judge Robart's temporary restraining order to the Ninth Circuit, and a three-judge panel issued a unanimous decision denying the motion for stay pending appeal. See State of Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017). Meanwhile, on March 6, 2017, President Trump signed Executive Order 13780 (Second Executive Order), titled “Protecting the Nation from Foreign Terrorist Entry into the United States, ” which revoked the First Executive Order. Dkt. No. 7-4.

         On March 13, 2017, the State of Washington filed a motion to amend in order to address the Second Executive Order, as well as an emergency motion to enforce the preliminary injunction. State of Washington, No. 17-cv-141 (W.D. Wash.), Dkt. Nos. 118, 119. Two days later, a district judge in Hawaii entered a nationwide temporary restraining order regarding the Second Executive Order in Hawai'i v. Trump, 241 F.Supp.3d 1119 (D. Haw. 2017), Dkt. No. 7-6. A district judge from Maryland similarly enjoined Section 2(c) of the Second Executive Order in Int'l Refugee Assistance Project v. Trump, 241 F.Supp.3d 539 (D. Md. 2017), aff'd in part and vacated in part, 857 F.3d 554 (4th Cir. 2017), as amended (May 31, 2017), as amended (June 15, 2017), cert. granted, 137 S.Ct. 2080 (2017), and vacated and remanded, 138 S.Ct. 353 (2017). Because of these two decisions, Judge Robart entered a March 17, 2017 order staying his determination of the plaintiff's motion for a temporary restraining order “so long as the nationwide TRO or preliminary injunction of identical scope remains in place in Hawai'i v. Trump.” State of Washington, No. 17-cv-141 (W.D. Wash.), Dkt. No. 164 at 11-12.

         The provisions of the Second Executive Order since have expired on their own terms; consequently, the United States Supreme Court vacated the judgments in the lower courts with instructions to dismiss as moot the challenges to the Second Executive Order. Trump v. Hawai'i, 138 S.Ct. 377 (2017); Int'l Assistance Project v. Trump, 138 S.Ct. 353.

         On September 27, 2017, President Trump signed a Presidential Proclamation entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats, ” 82 Fed. Reg. 45, 161. State of Washington, No. 17-cv-141 (W.D. Wash.), Dkt. No. 209 at 1. The State of Washington filed a third amended complaint in the Western District of Washington regarding the Proclamation, and a motion for temporary restraining order. Id. at Dkt. Nos. 198, 200. Before Judge Robart had an opportunity to decide that motion, the federal district court for the District of Hawai'i entered a temporary restraining order enjoining the government “fully from enforcing or implementing” sections 2(a)-(c), 2(e) and 2(g)-(h) of the Proclamation. Hawai'i v. Trump, 265 F.Supp.3d 1140, 1161 (D. Haw. 2017). Similarly, the district court of Maryland entered a preliminary injunction in Int'l Refugee Assistance Project v. Trump, 265 F.Supp.3d 570, 633 (D. Md. 2017). By order dated October 27, 2017, Judge Robart stayed consideration of the plaintiffs' temporary restraining order regarding the Proclamation in the Western District of Washington “as long as the preliminary injunction” in Hawai'i v. Trump remains in effect. State of Washington, No. 17-cv-141 (W.D. Wash.), Dkt. No. 209 at 16.

         II. Plaintiff's Motion for Default (Dkt. No. 10)

         After the defendant filed a motion to dismiss, the plaintiffs filed a motion for entry of default. Dkt. No. 10. In support of this motion, they submitted an affidavit, in which they attested that the “[d]efendant was served with a copy of the summons and complaint on March 10, 2017, as reflected on the docket sheet by the proof of service filed on March 21, 2017.” Dkt. No. 11 at ¶3. They asserted in the affidavit that the defendant's answer to the complaint was due on May 10, 2017, and that the defendant had not answered or otherwise responded by that date. Id. at ¶¶4, 5.

         Fed. R. Civ. P. 55(a) says that if a party fails to plead or otherwise defend, and “that failure is shown by affidavit or otherwise, ” the clerk must enter default. A party who moves for default under Rule 55(a) “has the burden of showing that service of process was property effected consistent with Rule 4 of the Federal Rules of Civil Procedure.” Geraci v. Everhart, No. 09-C-433, 2009 WL 3446193 at *2 (E.D. Wis., Oct. 23, 2009). In order to determine whether the plaintiffs are entitled to default, therefore, the court must determine whether they properly served the defendant under Rule 4.

         The plaintiffs have sued a federal district court judge, who is an officer and employee of the United States. Rule 4(i)(3) of the Federal Rules of Civil Procedure explains the service required when a plaintiff sues an officer or employee in his individual capacity. That rule requires that the plaintiff “must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).” In order to serve the United States, Fed.R.Civ.P. 4(i)(1)(A)(i) requires the plaintiff to deliver a copy of the summons and the complaint “to the United States Attorney for the district where the action is brought.” Rule 4(i)(1)(B) requires that the plaintiff also send a copy of the summons and complaint by registered or certified mail to the Attorney General of the United States “at Washington, D.C.” Actual notice to the defendant that a lawsuit has been filed is not sufficient; the plaintiff must comply with Rule 4. See Mid-Continent Wood Prod., Inc. v. Harris, 936 F.2d 297, 301-02 (7th Cir. 1991) (stating that actual notice is not sufficient to satisfy the requirements of Rule 4).

         The plaintiffs filed their proof of service on March 21, 2017. Dkt. No. 4. It shows that KKWT Process Services in Spanaway, Washington served the summons on Nicki (or Micki) Bruner, an Assistant U.S. Attorney General in Seattle, Washington, on March 10, 2017. Dkt. No. 4. There is no evidence that the plaintiffs served the complaint on the defendant himself, nor that they served it on the U.S. Attorney's Office for the Eastern District of Wisconsin, nor that they sent it to the office of the U.S. Attorney General in Washington, D.C. The defendant pointed this out in the brief in support of his motion to dismiss. Dkt. No. 7 at 5.

         In opposition to the motion to dismiss, the plaintiffs assert that they “correctly followed all service instructions provided . . . by the Clerk of Court for the United States District Court for the Eastern District of Wisconsin.” Dkt. No. 13 at 2. They attached to their opposition brief a copy of a letter from then-clerk of court Jon W. Sanfilippo, indicating that he had attached a page laying out steps for service of the complaint. Dkt. No. 13-1. The plaintiffs also assert that they should not have to serve the United States because the United States would support their ...


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