United States District Court, W.D. Missouri, Western Division
ORDER AND OPINION (1) DENYING PLAINTIFF'S MOTION
FOR DEFAULT, (2) DENYING PLAINTIFF'S REQUEST FOR ENTRY OF
DEFAULT, AND (3) GRANTING DEFENDANT'S MOTION TO
D. SMITH, SENIOR JUDGE
are Plaintiff's Motion for Default (Doc. #11),
Plaintiff's Request for Entry of Default (Doc. #13), and
Defendant's Motion to Dismiss (Doc. #17). For the
following reasons, Plaintiff's motion and request are
denied, and Defendant's motion is granted.
Plaintiff's Motion and Request for Default
serve a United States agency, such as Defendant Equal
Employment Opportunity Commission (“EEOC”), a
party must “deliver a copy of the summons and of the
complaint to the United States attorney for the district
where the action is brought” and send a copy of the
summons and complaint “by registered or certified mail
to the Attorney General of the United States at Washington,
D.C.” Fed.R.Civ.P. 4(i)(1)(A)-(B). On December 23,
2016, Plaintiff sent copies of the complaint and summons via
certified mail to the United States Attorney in the Western
District of Missouri, and the Department of Justice in
Washington, D.C. Docs. #9-10. The United States Attorney
received the complaint and summons on December 27, 2016. Doc.
#9, at 2. On February 27, 2017, the EEOC filed a
motion to dismiss. Doc. #17. Plaintiff argues the EEOC failed
to timely plead, and default should be entered. Docs. #11-14.
may enter default judgment against a defendant found to be in
default for failure to plead or otherwise defend.
Fed.R.Civ.P. 55. Although Plaintiff mailed the summons and
complaint on December 23, 2016, the United States Attorney
did not receive it until December 27, 2016. Doc. #9. Pursuant
to the Federal Rules of Civil Procedure, a United States
agency must respond to the complaint “within 60 days
after service on the United States attorney.”
Fed.R.Civ.P. 12(a)(2). This deadline is also reflected on the
summons served by Plaintiff on the United States Attorney:
“[w]ithin 21 days after service of this summons on you
(not counting the day you received it) - or 60 days if you
are…a United States agency… - you must serve on
the plaintiff an answer…or a motion under Rule
12….” Doc. #9, at 1.
EEOC's deadline to answer or file a Rule 12 motion was
February 25, 2017. Because the deadline fell on a Saturday,
the deadline was continued until Monday, February 27, 2017.
See Fed. R. Civ. P. 6(a)(1)(C) (stating “if
the last day is a Saturday, Sunday, or legal holiday, the
period continues to run until the end of the next day that is
not a Saturday, Sunday, or legal holiday.”). The EEOC
filed its Rule 12 motion on February 27, 2017, and in so
doing, timely defended this lawsuit. See Fed. R.
Civ. P. 12(a)(2). Accordingly, Plaintiff's motion and
request for default are denied.
The EEOC's Motion to Dismiss
EEOC moves to dismiss this matter. Doc. #17. The EEOC argues
Plaintiff's claims are barred by sovereign immunity.
Alternatively, the EEOC contends Plaintiff's Complaint
fails to state a claim upon which may be granted.
EEOC is a federal agency that enforces statutes prohibiting
discrimination, harassment, and retaliation. The United
States and its agencies are immune from suit unless immunity
has been waived, and there is consent to the suit. See
Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475
(1994). “The government can only be sued in the manner
in which it consents to be sued and by clear statutory
authority evidencing consent and conferring jurisdiction on
the district court to hear the action.” Pitchford
v. EEOC, Case No. 11CV00064, 2012 WL 12897899, at *1
(E.D. Ark. Sept. 24, 2012) (citation omitted). A waiver of
sovereign immunity must be “unequivocally
expressed.” United States v. Nordic Vill.
Inc., 503 U.S. 30, 33-34 (1992) (citations omitted).
Complaint alleges the Court has jurisdiction pursuant to 5
U.S.C. § 301. That statute simply authorizes the heads
of executive departments to prescribe regulations governing
their respective departments. It does not waive sovereign
immunity. And the EEOC has not consented to be sued.
Accordingly, Plaintiff's claims are barred by sovereign
immunity. For this reason, the EEOC's motion to dismiss
response to the EEOC's motion to dismiss, Plaintiff
contends the EEOC does not have immunity from suit under the
Federal Tort Claims Act (“FTCA”). Doc. #18, at 1.
The FTCA waives sovereign immunity for money damages for
“claims against the United States for money damages for
personal injury or death caused by the negligent or wrongful
act or omission of federal employees under circumstances
where the United States, if a private person, would be liable
to the claimant in accordance with the law of the place where
the act or omission occurred.” Mader v. United
States, 654 F.3d 794, 797 (8th Cir. 2011) (quoting 28
U.S.C. § 1346(b)(1)) (internal quotations omitted).
Plaintiff, however, has not alleged a claim under the FTCA.
Consequently, the limited waiver of sovereign immunity under
the FTCA does not apply. For this additional reason, the
EEOC's motion to dismiss is granted.
foregoing reasons, Plaintiff's motion and request for
default are denied, and ...