46 F. 3d 1145 - Sanders v. Gilbert & Smith

MEMORANDUM**

James H. Sanders appeals pro se the district court's denial of his motion for entry of default judgment against a "John Doe" defendant. Sanders filed this action against several defendants alleging violations of the Racketeer Influenced and Corruption Organizations Act ("RICO"), 18 U.S.C. Sec. 1961, and Oregon state law. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.1 We affirm.

We review a district court's denial of a motion for default judgment for an abuse of discretion. Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 885 (9th Cir. 1991). A default judgment, like any other judgment, may be entered against the defendant only if the defendant has been made party to the action by service of process. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969); see also Direct Mail Specialists Inc. v Eclat Computerized Tech., 840 F.2d 685, 688 (9th Cir. 1988) ("A federal court does not have jurisdiction over a defendant unless the defendant has been properly served under Fed. R. Civ. P. 4.")

In his first amended complaint, Sanders alleged that the defendants engaged in a scheme to defame him. Sanders named the following defendants: (1) the law firm of Mitchell, Lang & Smith ("MLS"); (2) Philip Gilbert, a former law clerk at MLS; (3) Central Analysis Bureau, Inc.; and (4) John Doe, "a client of [MLS], presumably a foreign corporation."

On September 24, 1993, Sanders filed a motion for an order of default and entry of default judgment against the fictitiously named defendant "John Doe." The district court denied Sanders's motion because Sanders failed to demonstrate that he served "John Doe" and because entry of default judgment is inappropriate against a fictitious party defendant.2 On appeal, Sanders contends that the district court erred by denying his motion because service on MLS was sufficient to effect service upon "John Doe." This contention is without merit.

In an attempt to serve defendant "John Doe," Sanders mailed the summons and complaint in a registered letter to the law offices of MLS, where a clerk signed the registered receipt. However, the clerk was employed by MLS, not the "John Doe" corporation. Therefore, Sanders never served an officer or managing or general agent of the "John Doe" corporation. See Direct Mail Specialists, Inc., 840 F.2d at 688. Furthermore, Sanders failed to demonstrate that MLS was an appointed or otherwise authorized agent of the "John Doe" corporation. See id. Thus, Sanders's attempted service on the "John Doe" corporation was ineffective. See id. Therefore, the "John Doe" corporation was never made a party to this action. See Zenith Radio Corp., 395 U.S. at 110; Direct Mail Specialists, Inc., 840 F.2d at 688. Accordingly, we cannot say that the district court abused its discretion by declining to enter a default judgment in Sanders's favor. See Zenith Radio Corp., 395 U.S. at 110; See Pau, 928 F.2d at 885; Direct Mail Specialists, Inc., 849 F.2d at 688.

AFFIRMED.