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Viju Varghese v. Eric K. Shinseki

July 25, 2011

VIJU VARGHESE, PLAINTIFF,
v.
ERIC K. SHINSEKI, SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS, DEFENDANT



The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh

NOT FOR PUBLICATION

OPINION

DENNIS M. CAVANAUGH, U.S.D.J.:

This matter comes before the Court upon motion by Eric K. Shinseki ("Defendant") to void default and to dismiss the complaint of Viju Varghese ("Plaintiff") pursuant to Fed. R. Civ. P. 4(m) and 12(b)(5). Pursuant to Fed. R. Civ. P. 78, no oral argument was heard. For the reasons stated herein, Defendant's motion is granted.

I. BACKGROUND

Plaintiff, a physical therapist employed within the Veteran's Administration Healthcare System since 2001, brought suit alleging that he had been discriminated against and paid less than other comparable employees based on his national origin. Plaintiff was issued a "right to sue" letter by the EEOC on March 28, 2010, and subsequently filed the present suit on June 25, 2010.This Court issued a "Notice of Call for dismissal" pursuant to Fed. R. Civ. P. 4(m) on December 3, 2010. (Dock. 3) Three days later Plaintiff filed an affidavit of service purporting to show that Defendant had been properly served as required by Fed. R. Civ. P. 4 (Dock. 4) On January 14, 2001 Plaintiff moved for Default Judgment pursuant to Fr. R. Civ. P. 55(e).Default was entered by the clerk on January 24, 2011.*fn1 Defendant's motion to dismiss and void the entry of default judgment was filed on April 13, 2011.

II. LEGAL STANDARD

Fed. R. Civ. P. 4(i) lays out very clear and specific rules for law suits such as the instant case, and states in relevant part:

(i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.

(1) United States. To serve the United States, a party must:

(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought--or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk--or

(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;

(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and

(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or ...


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