United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
February 2, 2018, One Gas, Inc. filed a Complaint In
Interpleader (Doc. #1) to discharge a debt and determine
the rights of defendants J.P. Pipeline Construction, Inc.
(“J.P. Pipeline”), Kaw Valley Bank (“Kaw
Valley”) and Bizfund LLC (“Bizfund”). One
Gas served its complaint and summons on each defendant. Doc.
#6 (Bizfund on Feb. 8, 2018); Doc. #7 (Kaw Valley on Feb. 12,
2018); Doc. #10 (J.P. Pipeline on Feb. 15, 2018). Under Rule
12(a)(1)(A)(I), Fed. R. Civ. P., Bizfund, Kaw Valley and J.P.
Pipeline had to file answers to the complaint on or before
March 1, 2018, March 5, 2018 and March 8, 2018, respectively.
March 5, 2018 - before either co-defendant entered an
appearance - Kaw Valley filed Kaw Valley Bank's
Answer To Complaint In Interpleader And Crossclaim Against
J.P. Pipeline Construction, Inc., And Bizfund LLC (Doc.
#9). Kaw Valley asserted a crossclaim against each
co-defendant which alleges that it has a perfected security
interest in the disputed fund. Id., ¶¶
13-18. Thus, Kaw Valley argues that its interest in the fund
is superior to that of either co-defendant. Id. On
April 4, 2018, the Clerk entered default as to
plaintiff's complaint against Bizfund and J.P. Pipeline.
Entry Of Default (Doc. #12).
case is currently before the Court on Kaw Valley Bank's
Rule 55(a), Fed. R. Civ. P., Application For Entry Of
Default Against Crossclaim Defendants Bizfund LLC And J.P.
Pipeline Construction Inc. (Doc. #13) filed April 6,
2018. Kaw Valley asserts that it served the answer and
crossclaim on Bizfund and J.P. Pipeline through the
Court's electronic filing system and via U.S. mail.
Id., ¶ 2. Kaw Valley asserts that
“[n]either Bizfund nor J.P. Pipeline has filed an
answer or other responsive pleading to Kaw Valley['s]
cross-claim within the time allotted by the Federal Rules of
Civil Procedure.” Id., ¶ 4. However, Kaw
Valley does not assert that, and the record does not show,
service on either co-defendant consistent with Rule 4, Fed.
R. Civ. P., which - among other things - requires service of
Rule 55(a) provides as follows:
When a party against whom a judgment for affirmative relief
is sought has failed to plead or otherwise defend and that
failure is shown by affidavit or otherwise, the clerk must
enter the party's default.
Civ. P. 55(a). Because a party has no duty to plead until
properly served, sufficient service of process is a
prerequisite to entry of default. Peterson v. Carbon
County, 156 F.3d 1244 (Table), 1998 WL 458555, at *4
(10th Cir. Aug. 6, 1998). When applying for an entry of
default, the movant bears the burden of showing that
defendant has been properly served. Evertson v. Topeka
Assoc. for Retarded Citizens, No. 05-4046-SAC, 2005 WL
2988716, at *1 (D. Kan. Oct. 11, 2005). Questions concerning
the adequacy of service preclude entry of default. Dewey
v. Topeka, No. 97-4037-SAC, 1997 WL 833300, at *3 (D.
Kan. Dec. 18, 1997).
Rule 5 governs service of any “pleading filed after the
original complaint, ” Fed.R.Civ.P. 5(a)(1)(B), it
states as follows:
service is required on a party who is in default for failing
to appear. But a pleading that asserts a new claim for relief
against such a party must be served on that party under Rule
Civ. P. 5(a)(2). Courts have interpreted the phrase “a
party who is in default for failing to appear” to
include parties who have not made an appearance. See
Varnes v. Local 91, Glass Bottle Blowers Ass'n
of the United States & Canada, 674 F.2d 1365, 1368
n.3 (11th Cir. 1982) (Rule 5(a)(2) applies to parties who
have not appeared and not adjudicated as in default by
court); see also Anunciation v. W. Capital Fin. Servs.
Corp., 97 F.3d 1458 (Table), 1996 WL 534049, at *1 (9th
Cir. Sept. 19, 1996) (Rule 5(a)(2) applies to “any
party who has failed to appear”); see Fluor
Eng'rs & Constructors, Inc. v. S. Pac. Transp.
Co., 753 F.2d 444, 449-50 n.7 (5th Cir. 1985) (summons
should be served when crossclaims against parties who have
not appeared); see also First Tuskegee Bank v.
Milner, No. 2:10-CV-463-WKW, 2011 WL 1642371, at *3-4
(M.D. Ala. May 2, 2011); see 4B Charles Alan Wright
et al., Federal Practice & Procedure § 1146 (4th ed.
2017) (Rule 5 service applies only to parties who have
Bizfund nor J.P. Pipeline has appeared in this action. In its
application for entry of default, Kaw Valley does not show
that it complied with Rule 4 when serving its crossclaim on
the co-defendants. Fed.R.Civ.P. 4 (requires, among other
things, service of summons). Because Kaw Valley has not met
its burden of showing proper service, the Court overrules its
application for entry of default.
THEREFORE ORDERED that Kaw Valley Bank's Application
For Entry Of Default Against Crossclaim Defendants Bizfund
LLC And J.P. Pipeline Construction ...