United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on the plaintiff’s motion
for default judgment against the defendant property and all
potential claimants thereto for failure to file a claim,
answer, or otherwise defend as set forth in Rule G of the
Supplemental Rules for Admiralty or Maritime Claims and Asset
of default in a civil action is appropriate “[w]hen a
party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend . . . .”
Fed.R.Civ.P. 55(a). A party has no duty to defend, however,
unless it has been properly served pursuant to Rule 4 of the
Federal Rules of Civil Procedure. See, e.g.,
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,
526 U.S. 344, 350 (1999) (“[O]ne becomes a party
officially, and is required to take action in that capacity,
only upon service of a summons or other authority-asserting
measure stating the time within which the party served must
appear and defend.”).
the issuance and delivery of the warrant for arrest of
property in an action in rem, the United States Marshal or
any United States officer or employee authorized to enforce
it, must execute the warrant in accordance with Supplemental
Rule E(4). Supp. R. E(4)(a); Supp. R. C(3)(b)(ii). Service,
or execution, of process on tangible property is generally
completed by taking it into possession. Supp. R. E(4)(b).
Service on intangible property is generally accomplished by
leaving a copy of the complaint and process with the
garnishee or other obligor. Supp. R. E(4)(c). A process
return and receipt form, or other proof of service indicting
when the warrant was served on the property, is filed with
the court by the person serving process. Except for service
by a United States marshal, proof of service must be by the
server’s affidavit. Fed.R.Civ.P. 4(1)(1). In addition
to service on the property, notice of the action in rem is
given directly to persons who reasonably appear to be
potential claimants and by publication in a newspaper or an
official Internet government forfeiture site. Supp. R.
5, 2016, in accordance with Rule 4 and Supplemental Rule G,
the Court ordered plaintiff to file proof of service on the
defendant property. In response to the Court’s order,
plaintiff filed a Department of the Treasury process receipt
and return, indicating that the warrant was executed by
Department of Homeland Security/Homeland Security
Investigations on May 16, 2016. However, the process receipt
and return contains no signature of an authorized treasury
agency officer acknowledging the receipt of process or
certifying the method of service described. The
plaintiff’s attorney’s signature and affirmation
are insufficient to establish that an authorized federal
officer properly effected service of process in this matter.
See Fed. R. Evid. 602 (“A witness may testify
to a matter only if evidence is introduced sufficient to
support a finding that the witness has personal knowledge of
plaintiff has not supplied the Court with sufficient
information to establish proof of service, there is no basis
on which to grant default judgment. See United States v.
2, 164 Watches, More or Less, Bearing a Registered Trademark
of Guess?, Inc., 366 F.3d 767, 771 (9th Cir. 2004)
(“[A] ‘failure to serve the warrant on the
res leaves the court without jurisdiction over the
‘defendant’ (i.e., the object in
dispute).’” (quoting United States v.
Approximately 2, 538.85 Shares of Stock Certificates of the
Ponce Leones Baseball Club, Inc., 988 F.2d 1281, 1287
n.8 (1st Cir. 1993))). Without proof of service, the Court
finds good cause to set aside the Clerk of the Court’s
entry of default. See Fed.R.Civ.P. 55(c). However,
because the failure to prove service does not negate the fact
of service, the Court will allow plaintiff the opportunity to
amend its proof of service. Fed.R.Civ.P. 4(1)(3).
service is proven, plaintiff may again seek entry of default.
If no proof of service is filed by the deadline set by the
Court, plaintiff’s motion for default judgment will be
denied and this action will be dismissed without prejudice.
IT IS HEREBY ORDERED that the Clerk’s entry of default
against defendant property Fifty-Nine Thousand, Five Hundred
Dollars ($59, 500.00) Supporting a Cashier’s Check,
#8261595 [Doc. #7] is vacated.
FURTHER ORDERED that plaintiff shall have until August 30,
2016, to file proof service on the defendant property.
 With respect to default judgments in
proceedings that are in rem actions for forfeiture, both the
Federal Rules of Civil Procedure and the Supplemental Rules
for Admiralty or Maritimes Claims and Asset Forfeiture
Actions apply, but the latter rules prevail if there is an
inconsistency. Supp. R. A(2). Rule G specifically governs
forfeiture actions in rem arising from a federal statute.