United States District Court, E.D. Wisconsin
ORDER DENYING PLAINTIFFS'S MOTION FOR ENTRY OF
DEFAULT (DKT. NO. 10), GRANTING DEFENDANT'S MOTION TO
DISMISS (DKT. NO. 6) AND DISMISSING CASE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
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.” 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.
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.
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.
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
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
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
Plaintiff's Motion for Default (Dkt. No. 10)
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
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.
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).
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.
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 ...