Kristian v. United States ( 2020 )

Sn the Anited States Court of Federal Clans
No. 19-1576C
(Filed January 7, 2020)
NOT FOR PUBLICATION
RRR ER REAR RRR RRR RR
MICHAEL JOHN KRISTIAN,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
*
*
*
*
*
*
*
*
*
*
*
*
KAEKK RAE KEK KR KEK KK KEK KA KKH Kk
ORDER
On January 6, 2020, the Clerk’s office received from plaintiff an application
for default judgment, presumably sought under Rule 55(b) of the Rules of the
United States Court of Federal Claims (RCFC). The document was not filed when
received because no proof of service was included---to the contrary, Mr. Kristian
maintains that no service was necessary because defendant “was not represented in
person.” But the government has made an appearance in this case, see Notice of
Appearance, ECF No. 6, and thus, the service exception of RCFC 55(b)(2) does not
apply. In light of Mr. Kristian’s pro se status, the Court will overlook this deficiency
and allow the paper to be filed as an application for default judgment. In the
future, any papers he wishes to file must be accompanied by a certificate of service
indicating that a copy was sent to defendant’s counsel and containing the
information required by RCFC 5.3(a) (the day, manner, method of service, and the
person served). Presently, the address of counsel is:
Kyle S. Beckrich
Trial Attorney, Commercial Litigation Branch
Civil Division — U.S. Department of Justice
P.O. Box 480
Ben Franklin Station
Washington, DC 20044
Although Mr. Kristian’s application for default judgment is now filed, on its
face the application is baseless and must be denied. Perhaps because he is
representing himself in this matter, plaintiff seems to misunderstand the rules of
this court. The basis for the application is that the government did not file an
answer to the complaint within 60 days, as is required by RCFC 12(a)(1). But when
the government files a motion under RCFC 12 or 56, the deadline for filing an
answer is altered. RCFC 12(a)(4); see Brandon v. United States, No. 15-600C, 2015
WL 5175142, at *1 (Fed. Cl. Sept. 3, 2015). On December 9, 2019, the government
timely filed a motion to dismiss this case under RCFC 12(b)(1)---as sixty days from
the filing of the complaint was Sunday, December 8, 2019, pushing the deadline to
the following Monday. See RCFC 6(1)(C). Should the Court deny the government’s
motion, the government’s answer is then due within fourteen days of that denial,
RCFC 12(a)(4)(i). Thus, the government is not in default, and plaintiff’s application
for default judgment is DENIED.
The Court recognizes that plaintiff may not have prepared his response to the
government’s motion to dismiss the case, despite the Order dated December 16,
2019, due to his unfounded belief that default judgment was warranted. Because
Mr. Kristian is proceeding pro se and has demonstrated a lack of familiarity with
this court’s rules, the Court hereby allows Mr. Kristian an additional 17 days from
the date of this order in which to file his response to the government’s motion. That
response must be received by the Clerk’s office on or by Friday, January 24, 2020.
Failure to properly respond by this date will result in the case being dismissed for
failure to prosecute the matter, under RCFC 41(b),
Plaintiff's application to proceed in forma pauperis is GRANTED, and he is
thus relieved of paying the filing fee.
VICTOR J. WwoLsyi =
Senior Judge
ITIS SO ORDERED.