Brooks v. Sterling Infosystems, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Roy W. Brooks, 	)
)
Plaintiff, 	) 	ORDER SETTING ASIDE ENTRY
) 	OF DEFAULT AND DENYING
v. 	) 	MOTION FOR PARTIAL SUMMARY
) 	JUDGMENT
Sterling Infosystems, Inc, 	)
now part of First Advantage Corporation, 	) 	Case No.: 1:25-cv-00246
)
Defendant. 	)
Plaintiff Roy W. Brooks (“Plaintiff”) initiated the above-titled action in forma pauperis by
Complaint against Defendant Sterling Infosystems, Inc. (“Defendant”) in October of 2025. (Doc.
Nos. 3, 4). On February 23, 2026, the court ordered the Clerk’s Office to effectuate service of the
summons and complaint on Defendant. (Doc. No. 6). While the summons was issued as to
Defendant the same day, there has been nothing in the record to reflect that Defendant had been
properly served, and no return receipt was received by the Clerk’s Office. Accordingly, on April
13, 2026, the court ordered that service of process on Defendant be made by the United States
Marshal Service. (Doc. No. 13). On May 5, 2026, the summons was returned unexecuted, with the
notation that Defendant was not located at the address provided. (Doc. No. 14).
On May 12, 2026, Plaintiff requested leave to correct the address of Defendant’s place of
business, advising that there had been an acquisition between Sterling Infosystems, Inc. and First
Advantage Corporation on October 31, 2025. (Doc. No. 15). On May 14, 2026, the court granted
Defendant’s motion. (Doc. No. 16). Defendant provided the amended address and successor
identification on May 19, 2026, and on May 21, 2026, the court directed the Clerk’s Office to serve
Defendant at the corrected address. (Doc. Nos. 17, 20). The summons was issued on May 21, 2026,
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and returned executed on June 10, 2026. (Doc. Nos. 21, 22). Defendant has until August 7, 2026,
to answer or otherwise respond to Plaintiff’s complaint. (Doc. No. 22).
Meanwhile, on April 8, 2026, Plaintiff filed a motion for entry of default. (Doc. No. 8). The
Clerk’s office entered default against Defendant that same day. (Doc. No. 9). On April 10, 2026,
Plaintiff filed a Motion for Summary Judgment and corresponding brief. (Doc. Nos. 10, 11). Within
his motion, Plaintiff requested the court grant his motion for partial summary judgment as to
willfulness under 15 U.S.C. § 1681n and for the court to take judicial notice of the entry of default
when making its determination. (Doc. No. 10 at 1-2).
The court first turns to the issue of default. Federal Rules of Civil Procedure 55 requires
that the clerk enter default against a party who has failed to plead or otherwise defend, and such a
failure is shown by affidavit or otherwise. Fed. R. Civ. P. 5(a). Rule 4 further dictates service of
process. Pursuant to this rule,
Service [by certified mail] shall not be the basis for entry of a judgment by default
unless the record contains a return receipt signed by the addressee or the agent of
the addressee or a returned envelope, postal document; A United States Postal
Service Form 3811 (Domestic Return Receipt-green card) executed as provided in
the United States Postal Service procedures in place at the time of service; or an
affidavit by a postal employee reciting or showing refusal of the mailed process by
the addressee. Failure to claim mail does not constitute refusal for purposes of this
paragraph.
Fed. R. Civ. P. 4(g)(1)(A)(ii). The court also has authority in certain instances to order service by
any method reasonably calculated to apprise the defendant of the action. Fed. R. Civ. P. 4(g)(4).
In instances of service by certified mail, as is the case here, the record must contain a return
receipt or other document as defined in Rule 4. Without such documentation in the record, service
by certified mail cannot be the basis for entry of default judgment. As previously addressed by this
court, the first issuance of the summons on February 23, 2026, was done by certified mail. (Doc.
No. 7). No return receipt was returned to the court or filed in the docket. On April 13, 2026, the
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court directed that a representative of the United States Marshal Service effectuate service. (Doc.
No. 13). The United States Marshal Service later filed an unexecuted summons with the court,
advising that Defendant was not located at the provided address. (Doc. No. 14). Finally, after
Plaintiff was permitted to amend Defendant’s address, another summons was issued and later
returned executed. (Doc. Nos. 17, 21, 22).
While Plaintiff made his motion for entry of default on April 8, 2026, after the issuance of
the first summons, the first summons cannot serve as a basis for entry of default. Because this
summons was issued by certified mail and no return receipt was received, there is no basis for
default as prescribed by Rule 4(g)(1)(A)(ii). There is also no basis for entry of default as to the
unexecuted summons provided by the United States Marshal Service. Because the summons was
returned unexecuted, and Defendant was not located at the provided address, they were not
properly served. See Moore v. Campbell, No. 5:11CV00137 JMM/JTR, 2011 WL 4018164, at *1-
2 (E.D. Ark. Aug. 23, 2011), report and recommendation adopted, No. 5:11CV00137 JMM/JTR,
2011 WL 4018129 (E.D. Ark. Sept. 12, 2011) (“On July 28, 2011, service on Defendant McKenzie
was returned unexecuted because she no longer works for Correctional Medical Services, Inc.
(“CMS”). On the same day, service on Defendant Campbell was returned unexecuted because he
has never worked for CMS…. On August 19, 2011, the Court issued an Order: (1) directing the
U.S. Marshals to serve Defendant McKenzie at her sealed private address; and (2) giving Plaintiff
sixty days to provide a valid service address for Defendant Campbell. Thus, Defendants McKenzie
and Campbell are not in default because they have not yet been properly served.” (internal citations
omitted)).
Also notable is the requirement that the plaintiff bear the burden of prosecuting their case,
to include the effectuation of service on a defendant. While the United States Marshal Service and
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the court may assist, and have assisted in this matter, the ultimate responsibility of ensuring proper
effectuation of service is that of the plaintiff. Vickerman v. Vermillion, No. 1:25-CV-073, 2026 WL
77400, at *1 (D.N.D. Jan. 9, 2026) (collecting cases). This includes providing correct information
for service.
As to the third and final summons, upon Plaintiff providing the Defendant’s correct
address, the summons was distributed by certified mail and later returned executed. (Doc. No. 22).
Defendant has until August 7, 2026, to answer or otherwise respond to Plaintiff’s complaint. (Id.).
Because Defendant’s deadline to answer or otherwise respond to the complaint has not passed,
Plaintiff cannot use Rule 55 as a method of obtaining default judgment as there has been no failure
to plead or otherwise defend on the part of Defendant. See Fed. R. Civ. P. 55(a).
A court, for good cause shown, may set aside an entry of default. Fed. R. Civ. P. 55(c). To
determine whether there is good cause, “[the Eighth Circuit] and others have looked at whether
the conduct of the defaulting party was blameworthy or culpable, whether the defaulting party has
a meritorious defense, and whether the other party would be prejudiced if the default were
excused.” Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 784 (8th Cir. 1998). Defendant is
neither blameworthy nor culpable, as it was not properly served by Plaintiff until the issuance of
the May 21, 2026, summons, and upon return of the executed summons on June 10, 2026. (See
Doc. Nos. 21, 22). Rule 4 requires that service on corporations be on its registered agent for service
of process, or the agent’s secretary or assistant; any officer of the corporation, or the officer’s
secretary or assistant; a managing or general agent of the corporation, or the agent’s secretary or
assistant; any agent authorized by law or by appointment to receive service of process; or as
provided by statute. Fed. R. Civ. P. 4(f)(5). Because the court and the United States Marshal Service
was not provided the correct address, instead providing an address where Defendant was not
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located, default cannot be entered based on a failure to respond after not being properly served.
Moreover, no prejudice will result were the entry of default set aside. This matter has not
progressed due to repeated failures to serve Defendant. Because Defendant has now been properly
served, their answer is not due until August 7, 2026, meaning that there has been no opportunity
for Defendant to have failed to plead or otherwise defend this matter. As such, the entry of default
must be set aside.
Finally, the court turns its attention to Plaintiff’s Motion for Partial Summary Judgment.
(Doc. No. 10). While noting that Plaintiff captioned his motion as a “Motion for Partial Summary
Judgment on Willfulness,” it is unclear as to whether Plaintiff actually seeks partial summary
judgment, or the issuance of default judgment based on his request the court take notice of the
entry of default. Either way, the court is inclined to deny the motion without prejudice. Plaintiff
argues that because Defendant is in default, “all well-pleaded factual allegations in Plaintiff’s
Complaint and supporting filings are deemed admitted.” (Doc. No. 11 at 1). Based on this entry of
default, Plaintiff contends there is no genuine dispute of material facts, which further supports the
court granting his motion for partial summary judgment. (Id. at 2).
If the motion were construed as a request for issuance of default judgment, such a request
is denied as the entry of default must be set aside for the reasons articulated above. In the event
Plaintiff did intend the motion to be for partial summary judgment, it must be denied for similar
reasons. In support of his motion, Plaintiff submitted a brief. Within his brief, Plaintiff argued that
summary judgment is appropriate when there is no genuine issue of material fact, and because
default has been entered, there can be no factual dispute. (Doc. No. 11 at 3). Because entry of
default must be set aside, and without considering whether there is a genuine issue of material fact,
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the court shall deny the motion. Plaintiff may bring the appropriate motion after Defendant is
provided with an opportunity to answer or otherwise respond to the complaint.
For the reasons articulated above, the court SETS ASIDE the entry of default (Doc. No.
9), and DENIES without prejudice Plaintiff’s motion for partial summary judgment. (Doc. No.
10).
IT IS SO ORDERED.
Dated this 24th day of July, 2026.
/s/ Clare R Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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