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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Donna L. Stypeck, 

Plaintiff, 

v. 

City of Clarkdale, et al., 

Defendants.

No. CV-15-08163-PCT-DGC

ORDER 

 Defendant Richard S. Calvert moves to vacate the clerk’s entry of default pursuant 

to Rule 55(c) of the Federal Rules of Civil Procedure, and to dismiss the action for 

insufficient service of process pursuant to Rule 12(b)(5). Doc. 59. The Court will vacate 

the default, deny the motion to dismiss, and grant Plaintiff limited additional time to 

complete proper service on Defendant Calvert. 

 Plaintiff served Defendant by certified mail. Doc. 32. Rule 4 provides that an 

individual may be served by delivering copies of the summons and complaint to the 

individual personally, leaving copies at the individual’s dwelling or usual place of abode 

with someone of suitable age and discretion who resides there, or delivering copies to an 

agent authorized by appointment or by law to receive service of process. Fed. R. Civ. P. 

4(e)(2). The rule does not expressly permit service by certified mail, but it does provide 

that service may be completed in accordance with the law of the state where service is 

made. See Rule 4(e)(1). Arizona law does not permit service by certified mail on 

individuals served within the state. See Ariz. R. Civ. P. 4.1(d). Thus, Defendant Calvert 

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has not been properly served and default cannot be entered against him. Insituform 

Techs., Inc. v. AMerik Supplies, Inc., 588 F. Supp. 2d 1349, 1352 (N.D. Ga. 2008) 

(“Where service of process is insufficient, the entry of default is void and must be set 

aside.”) (citing Varnes v. Local 91, Glass Bottle Blower’s Ass’n of U.S. and Canada, 674 

F.2d 1365, 1368 (11th Cir. 1982)). 

 A defendant may move to dismiss an action under Rule 12(b)(5) if service of 

process is insufficient, but district courts have discretion to either dismiss the action or 

quash service. S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006) 

(citing Stevens v. Sec. Pac. Nat’l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976)). Because 

Plaintiff is proceeding pro se, the Court will quash service rather than dismiss the action. 

See Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986) (“[I]n evaluating [a pro se

plaintiff’s] compliance with the technical rules of civil procedure, we treat [her] with 

great leniency”). The Court will permit Plaintiff to serve Defendant properly by May 20, 

2016, or the action may be dismissed on Defendant’s motion. 

IT IS ORDERED: 

1. Defendant’s motion to vacate default (Doc. 59) is granted. 

2. Defendant’s motion to dismiss (Doc. 59) is denied. 

3. Plaintiff has until May 20, 2016, to serve Defendant Richard S. Calvert in 

accordance with Rule 4(e) of the Federal Rules of Civil Procedure, or the 

action may be dismissed on Defendant’s motion. 

4. Plaintiff’s motions for default judgment (Doc. 63) and for a case 

management conference related to the motion for default judgment 

(Doc. 65) are denied. 

 Dated this 29th day of April, 2016. 

Case 3:15-cv-08163-DGC Document 69 Filed 04/29/16 Page 2 of 2