UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 15-609 (CKK)

MEMORANDUM OPINION (July 10, 2015) Plaintiff Miguel Ilaw, proceeding pro se , filed suit against the United States Department of Justice, District Court Judge L ucy H. Koh, and Littler Mendelso n, P.C., bringing several claims against Defendants for their actions related to an employment d iscrimination case brought by Plaintiff in a Ninth Circuit district court. On June 3, 2015, Plaintiff moved the Court to enter default against Defendant Littler Mendelson, which the Clerk of Court entered on June 4, 2015. Presently before the Court is De fendant Littler Mendelson’s (“L ittler”) Motion to Vacate Clerk’s Entry of Default. Also before the Court is Plaintiff’s Applica tion for Second Entry of Default Against Defendant Littler Mendelson, Plaintiff’s Motion for Def ault Judgment Against Littler Mendelson, and Plaintiff’s Motion for Leave to File Supplementa l Pleading Against Defendant Littler Mendelson. Upon consideration of the pleadings, 1 the relevant legal au thorities, and the

1 Defendant’s Motion to Vacate Clerk’s Entry of Default (“Def.’s Mot. to Vacate”), ECF No. [12]; Plaintiff’s Opposition to Defendant’s Motion to Vacat e Clerk’s Entry of Default (“Pl.’s Opp’n”), ECF No. [23]; Defendant’s Reply to Opposition to Motio n to Vacate Clerk’s Entry of Default (“Def.’s Reply”), ECF No. [25]; Plaintiff’s Motion for Default Judgment (“Pl.’s Mot. for Def. J.”), ECF No. [26]; Plainti ff’s Application for Second Ent ry of Default Against Defendant Littler Mendelson (“Pl.’s Sec. A pp. for Default”), ECF No. [28] ; Pl.’s Mot. for Leave to File Supp. Pleading Against Def. Littler Men delson (“Pl.’s Mot. for Leave to File”), ECF No. [34].

MIGUEL ILAW, Plaintiff,

v. DEPARTMENT OF JUSTICE, et al. , Defendants.2 record for purposes of these motions, the Court shall GRANT Defendant’s Motion to Vacate, DENY Plaintiff’s Application for Second Entry of Default, DENY as MOOT Plaintiff’s Motion for Default Judgment, and GRANT Plaintiff’s Motion for Leave to File Supplemental Pleading for

the reasons stated herein.

I. BACKGROUND Plaintiff filed suit against t he three Defendants in this case on April 21, 2015. 2 On April 24, 2015, Kenneth O’Brien, a Shareholder and Associate General Counsel for Defendant Littler, received from Plaintiff a Notice of Lawsuit and Request to Waive Service of Summons, which had been sent via first-class mail to Littler’s Chief Operating Off icer, Robert Domingues. Defs.’ Ex. 1, Declaration of Kenneth R. O’Brien (“O’Brien Decl.”), ¶ 5. M r. O’Brien sent a letter to Plaintiff the same day indicating that Littler would not waive service of process by summons. Id. , Ex. 1(C). On April 30, 2015, Plaintiff attempted to serve all Defendants by sending the Complaint and Summons via Federal Express. See Return of Service Affidavit, ECF No. [9]. The Federal Express package sent to Defendant Littler was addressed to Mr. Domingues and was signed for by Geo Niespolo, a mailroom clerk who, Defendant contends, is not authorized to accept service of process. O’Brien Decl. ¶ 9. Mr. O’Brien claims that he did not receive any documents purporting to constitute service on or about April 30, 2015. Id. ¶ 6. On May 26, 2015, Plaintiff emailed Mr. O’Brien stating that he “was not served with any answer to [his] federal action ag ainst [Defendant’s] business l aw firm, served on April 30, 2015.”

Id. ¶ 7, Ex. 1(D). Mr. O’Brien responded to Plaintiff the same day , stating that Plaintiff had “not

2 On July 10, 2015, the Court gran ted Plaintiff’s voluntarily di smissal of Defendant Department of Justice and Defendant Lucy H. Koh in her official capacity from this lawsuit. See Minute Order (July 10, 2015).3 made proper service” and inviting Plaintiff to call Mr. O’Brien to “speak about service issues.” Id. On June 1, 2015, an individual ha nd-delivered a copy of the Sum mons and Complaint and other court filings to a legal assistant in Mr. O’Brien’s office. Id. ¶ 8. Included in the documents received on June 1, 2015, was a document titled “Proof of Servi ce” stating that service was made on Defendant Littler via Federal Express on April 30, 2015, and signed for by Mr. Niespolo. Id. ¶ 9. Mr. O’Brien claims this was the first time he became awar e of any attempt to service process

in this action. Id. The same day, Mr. O’Brien informed Plaintiff that Littler had r eceived the Complaint and Summons and would “file a timely response as requ ired by law,” which Defendant calculated to be due by June 22, 2015. Id. ¶ 8. Plaintiff has not filed Proof of Service with the Court as to the June 1, 2015, service. On May 28, 2015, Plaintiff alleges to have again served Defenda nt Littler by delivering the Complaint and Summons to Angelina Chong, the mailroom coordinator whom, the process server claims, “gained authorization to accept the documents on [Mr. D omingues’] behalf.” Pl.’s Opp’n, Ex. 101. Mr. O’Brien apparently received the May 28, 2015, ser vice documents on June 2, 2015, via inter-office mail and assumed that “the duplicate documents and disk he received on June 2 were from another improper service attempt.” Def.’s Reply, at 5. On June 3, 2015, Plaintiff filed an Application for Entry of De fault Against Defendant

Littler Mendelson on the basis that Defendant had failed to fil e a timely response to Plaintiff’s Complaint and Summons served on Defendant on April 30, 2015. See Pl.’s Application for Entry of Default Against Defendant Littler Mendelson, ECF No. [10]. The Clerk of Court entered default against Defendant Littler on June 4, 2015. See Clerk’s Entry of Default, ECF No. [11]. On June 10, 2015, Defendant Littler moved to vacate the Clerk’s entry o f default and on June 22, 2015, Defendant filed its Motion to Dismiss. Plaintiff subsequently filed an Opposition to Defendant’s4 Motion to Vacate and Defendant filed a Reply. Accordingly, Def endant’s Motion to Vacate Clerk’s Entry of Default is now r ipe for the Court’s review. In addition, Plaintiff filed an Opposition to Defendant’s Motio n to Dismiss, an Application for Second Entry of Default Against Defendant Littler Mendelson based on Plaintiff’s May 28, 2015, service of process, a Motion for Defaulat Judgment, and a Motion for Leave to File Supplemental Pleading. As all of these filings revolve around the same set of procedural facts and legal questions, the Court will address all of the parties’ abo ve-listed filings in this Memorandum Opinion.

II. LEGAL STANDARD “Default judgments are generally disfavored by courts, because entering and enforcing judgments as a penalty for delays in filing is often contrary t o the fair administration of justice.”

Int’l Painters & Allied Trades Union & Indus. Pension Fund v. H.W. Ellis Painting Co., Inc., 288 F.Supp.2d 22, 25 (D.D.C. 2003). Pursuant to Federal Rule of Ci vil Procedure 55(c), the Court “may set aside an entry of default for good cause.” Fed .R. Civ. P. 55(c). “Though the decision [to set aside an entry of default] lies within the discretion o f the trial court, exercise of that

discretion entails consideration of whether (1) the default was willful, (2) a set

- aside would prejudice plaintiff, and (3) the alleged defense was meritoriou s.” Keegel v. Key West & Caribbean Trading Co., Inc., 627 F.2d 372, 373 (D.C. Cir. 1980) (citations omitted). “On a motion for relief from the entry of a default or a default judgment, all doubts are resolved in favor of the party seeking relief.” Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980).

III. DISCUSSION Defendant moves the Court to vacate the Clerk’s entry of defaul t on the basis that Plaintiff did not properly serve Defendant on April 30, 2015, and that De fendant filed a timely responsive5 pleading to the only service Plai ntiff clearly and properly eff ectuated on Defendant. The Court agrees that the Clerk’s entry of default against Defendant Litt ler must be vacated. First, Plaintiff’s April 30, 2015, attempt to serve Defendant L ittler was defective. Pursuant

to Federal Rule of Civil Proce dure 4(h) a corporation must be s erved (1)(A) in the manner prescribe d by Rule 4(e)(1) for serving an individual; or (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by app ointment or by law to receive service of process a nd—if the agent is one authorize d by statute and the statute so requires—by also mailing a copy of each to the defen dant . . . Federal Rule of Civil Proce dure 4(e) permits service by (1) following state law for serving a summons in an action brou ght in courts of general jurisdiction in the state where the district court is l ocated or where service is made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to th e individual personally; (B) leaving a copy of each at the individual's dwelling or usua l place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appoint ment or by law to receive service of process. As this action was brought in the District of Columbia and service was attempted at Defendant Littler’s offices in California, the Court must also consider t he law for service in both of those jurisdictions. See Fed. R. Civ. P. 4(e)(1); 4(h)(1)(A). The District of Columbia Superior Court Rules of Civil Procedure largely mirror the Federal Rules of Ci vil Procedure, but also permit service on a corporation “by mailing a copy of the summons, com plaint, and initial order to the person to be served by registered or certified mail, return rec eipt requested,” Sup. R. Civ. P. 4(c)(3), and by “mailing a copy of the summons, complaint, and initial order by first-class mail, postage prepaid , to the person to be served, together with two copies of a Notic e and Acknowledgment conforming substan tially to Form 1-A and a retur n envelope, postage prepaid,6 addressed to the sender, ” Sup. R. Civ. P. 4(c)(4). California law generally provides that service must be effectuated by delivering a copy of the complaint and summons to an individual personally, see Cal. Code Civ. P. 415.10; however, a summons and complaint may be served by mail if they are “mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in s ubdivision (b) and a return envelope, postage prepaid, addressed to the sender,” Cal. Code Civ. P. 415.30. California law sets forth four categories of individuals through whom a corporation may validly be served: (1) the pers on designated as agent for service of process; (2) enumerated officers and other authorized agents of the corporation; (3) a cashier or assistant cashier if the corporation is a bank; and (4) in cert ain circumstances, the Secretary of State as provided in Corporat ions Code section 1702. Cal. Code Civ. P. 416.10. Here, Plaintiff attempted service on April 30, 2015, by sending a copy of the Complaint and Summons to Defendant Littler via Federal Express. Plaintif f argues in his Opposition that mailing service via Federal Express constitutes “delivering” th e Summons and Complaint to Defendant in compliance with Federal Rule of Civil Procedure 4( h); however, “deliver” in this context does not include service by mail. See Paul v. Didizian , 292 F.R.D. 151, 155 (D.D.C. 2013) (explaining that the plaintiff’s attempt to mail a copy of the complaint to the defendant is “insufficient” to meet the requirements of the Federal Rules of Civil Procedure, “which requires the copy to be ‘deliver[ed]’ and not mailed.”); United Prod. Solutions, Ltd. v. Tara Toy Corp. , No. 10-cv-01718, 2011 WL 3566849, at *2 (D. Oh. Aug. 12, 2011) (“Th e term ‘deliver’ in this context does not include service by mail.”). Moreover, while District of Columbia and California law permit service by mail in certain circumstances, Plaintiff has not alleged or provided any proof to the Court that when he sent the Complaint and Summons via mail he included two copies of the7 notice and acknowledgment form or a return enveloped as require d by District of Columbia Superior Court Rule of Civil Proc edure 4(c)(4) a nd California C ode of Civil Procedure 415.30.

It is unclear whether service via Federal Express with an affid avit from Plaintiff attesting that the Federal Express package was signed for by an identifie d individual complies with District of Columbia Superior Court Rule of Civil Procedure 4(c)(3) perm itting service by “registered or certified mail, return receipt requested .” See Seldon v. Home Loan Services , No. 07-4480, 2009 WL 188015, *2 (E.D. Pa. Jan. 26, 2009) (finding service by Fede ral Express was not proper when Plaintiff provided only Federal Express mailing labels, not sig ned receipts from Defendant confirming delivery and acceptance). What is clear, however, is that the Federal Express package containing the Complaint and Summons was signed for by Mr. Nies polo who is not an officer of Defendant or an agent authorized to accept service on behalf of Defendant Littler. 3 Accordingly, service was not proper under either Federal, District of Columb ia, or California law. As service was not properly effected on De fendant Littler on April 30, 201 5, default against Defendant is not

3 Plaintiff contends that Mr. Ni espolo, as an “agent” or “employ ee,” has “a common duty, responsibility and obligation to process se rvices in good faith as part of internal procedures in the business of litigation and legal profession.” Pl.’s Opp’n, at 7. Plaintiff cites no authority for the source of this alleged “duty.” Accordingly, the Court maintain s that service on Mr. Niespolo did not effectuate proper service. See Norris v. Dist. of Columbia Gov’t. , et al , No. 05-1122, 2008 WL 7994986, *8 (D.D.C. Aug. 1, 2008), Report and Recommendation adopted , 2008 WL 7994985 (Sept. 12, 2008) (finding service of process invalid where Plai ntiff mailed the complaint to the defendant and argued, with “no citation of authority,” that it was “the duty of the mail room employee [who received service] to alert others if a lawsuit ha s been filed”); see also Byrd v. District of Columbia , 230 F.R.D. 56, 59 (D.D.C. 2005) (explaining that it is “estab lished District of Columbia precedent that service of process is invalid when t he plaintiff sends a summons and complaint by certified mail to a defendant’s office[ ] but the mail is signed for by a secretary, receptionist, or other individual not specifically authorized to accept service of process”); Larry M. Rosen & Assoc., Inc. v. Hurwitz, 465 A.2d 1114, 1117 (D.C. 1983) (findi ng service of process invalid when complaint and summons were sent by registered mail to corporate address and opened by receptionist authorized to open letters addressed to appellants, even though receptionist allegedly delivered a copy of summons and complaint to appellan ts).8 appropriate since the Clerk entered default on the basis that D efendant had failed to respond to Plaintiff’s Complaint after the April 30, 2015, service attempt

. See Scott v. District of Columbia , 598 F.Supp. 2d 30, 36 (D.D.C. 2009) (“[d]efault cannot be enter ed where there was insufficient service of process.”); Koerner v. United States, 246 F.R.D. 45, 47 (D.D.C. 2007) (finding good cause to vacate the entry of default because the plaintiff erre d in effecting service on the Government and the Government thus had no obligation to file an Answer); Baade v. Price, 175 F.R.D. 403, 406 (D.D.C. 1997) (setting aside Clerk’s entry of d efault where the defendant was not properly served). In addition, the Court finds that there is good cause to set as ide the default because

Defendant filed a Motion to Dism iss in response to Plaintiff’s Complaint on June 22, 2015. It is undisputed that Plaintiff properl y served Defendant on June 1, 2015. Accordingly, Defendant’s June 22, 2015, Motion to D ismiss was filed w ithin the 21 days p ermitted by Federal Rule of Civil Procedure 12(a)(1)(A) for filing a pleading responsive to a com plaint. Plaintiff contends in his Opposition to Defendant’s Motion to Vacate Clerk’s Entry of Def ault that Defendant’s Motion to Dismiss was actually two days late because Plaintiff also serve d Defendant on May 28, 2015. Plaintiff submitted proof of this service with his Opposition to Defendant’s Motion to vacate. See Pl.’s Opp’n, Ex. 101. Defendant does not directly challenge Pl aintiff’s assertion that Plaintiff properly served Defendant on May 28, 2015. See Def.’s Reply, at 5 (“After reviewing the process server’s information, Littler does not dispute the facts provid ed, and it appears that these materials arrived via inter-office mail for Mr. O’Brien on June 2.”). Ac cordingly, Defendant’s Motion to Dismiss was filed with the Court two days late. However, the Court finds that Defendant has provided a valid re ason for this brief delay. Notably, Defendant explains that in the confusion of Plaintiff’ s multiple proper and improper9 service attempts, Defendant bel ieved the June 1, 2015, service to be the only proper and operative service attempt. See id . The Court finds Defendant’s confusion to be well founded. M r. O’Brien directly received proper servic e of the Complaint and Summons f rom Plaintiff on June 1, 2015. From the additional documents served on Mr. O’Brien on June 1, Mr. O’Brien learned of Plaintiff’s April 30, 2015, failed service attempt on mail room clerk Mr. N iespolo. Mr. O’Brien sent Plaintiff an email on June 1, 2015, informing him that Defendant had rece ived service of the Complaint and Summons on June 1, 2015, and would “file a timely response as required by law.” O’Brien Decl. ¶ 11. Despite continuing to correspond with Mr. O’Brien via email, Plaintiff did not respond to Mr. O’Brien’s June 1 email message to alert Mr. O’Brien of t he May 28, 2015, service or to clarify that Mr. O’Brien needed t o file a timely response based on the May 28—not June 1— service. On June 2, 2015, Mr. O’Bri en received, via inter-offi ce mail, service materials and other

documents that had been served on Defendant’s mail room coordin ator on May 28, 2015, allegedly

with the authorization of Mr. D omingues. Given Plaintiff’s mul tiple service attempts on multiple agents and Mr. O’Brien’s email confirming to Plaintiff that he had received service on June 1, 2015, Mr. O’Brien “assumed that the duplicate documents . . . h e received on June 2 were from another improper service atte mpt.” Def.’s Reply, at 5. For these reasons, the Court finds Defendant’s two-day delay wa s not willful. The Court

also finds that Plain tiff was not prejudiced by this brief, exc usable delay, especially in light of the

fact that Plaintiff was inform ed by Defendant on June 1, 2015, that it had received service of process on that date and would be filing a timely response as o f that date and Plaintiff did not contest the propriety of that assertion. 4 Accordingly, the Court shall grant Defendant a two-day

4 In Plaintiff’s Opposition, Plaintiff claims that he was prejudi ced because he “incurred more loans for service fees.” Pl.’s Opp’n, at 11. However, th e additional service fees Plaintiff10 extension nunc pro tunc and accept Defendant’s June 22, 2015, Motion to Dismiss. Final ly, the

Court has reviewed Defendant’s M otion to Dismiss and finds that Defendant’s defenses appear to be potentially meritorious. Keegel , 627 F.2d at 374 (internal citation omitted) (“Defendants’ allegations are meritorious if they contain ‘even a hint of a suggestion’ which, proven at trial, would constitute a complete defense.”). Accordingly, the Court shall vacate the Clerk’s June 4, 2015, entry of default and deny Plaintiff’s second application for entry of default, which is based on Defendant’s two-day delay in responding to Plaintiff’s May 2 8, 2015, service of process. As the Court shall vacate the entry of default against Defendant, Plaintiff’s Motion for Default Judgment is accordingly rendered moot. Finally, the Court notes that Plaintiff has based its entire op position to Defendant’s Motion to Dismiss on the argument that Defendant’s Motion is moot “fro m failure to plead or otherwise defend on prior May 28, 2015 professional service.” Pl.’s Opp’ n to Def.’s Mot. to Dismiss, ECF No. [19], at 1. As the Court has accepted Defendant’s Motion t o Dismiss despite the two-day delay for the reasons outlined above, the Court finds it approp riate to permit Plaintiff an opportunity to provide the Court a substantive response to Defe ndant’s Motion to Dismiss. On July 9, 2015, Plaintiff filed a Motion for Leave to File Supple mental Pleading Against Defendant Littler Mendelson which appears to contain Plaint iff’s substant ive response to Defendant’s Motion to Dismiss. Accordingly, the Court shall grant Plaintiff’s Mot ion and order the Clerk of Court to file Plaintiff’s supplemental pleading on the public docket. D efendant shall be provided an opportunity to amend its Reply t o Plaintiff’s Opposition by no later than July 21, 2015.

allegedly incurred are not a result of Defendant’s two-day dela y in responding to Plaintiff’s Complaint, but a result of Pla intiff improperly serving Defenda nt on April 30, 2015, and attempting to properly re-serve Def endant several times thereaf ter.11 IV. CONCLUSION For the foregoing reasons, Defendant’s Motion to Vacate Clerk’s Entry of Default is GRANTED. Furthermore, Plaintiff’ s Application for Second Entry of Default Against Defendant

Littler Mendelson is DENIED and Plaintiff’s Motion for Default Judgment Against Littler Mendelson is DENIED as MOOT. The Court accepts Defendant’s Mot ion to Dismiss and shall GRANT Plaintiff’s Motion for Leave to File Supplemental Pleading Against Defendant Littler Mendelson. Defendant shall file an amended Reply by no later t han July 21, 2015. An appropriate Order accompani es this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE