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Silva v. City of Madison

November 16, 1995

FRANCISCO SILVA,

PLAINTIFF-APPELLANT,

v.

CITY OF MADISON,

DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Western District of Wisconsin. No. 92 C 822--John C. Shabaz, Judge.

Before BAUER, COFFEY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

ARGUED FEBRUARY 28, 1995

DECIDED NOVEMBER 16, 1995

Francisco Silva commenced this civil action against the City of Madison ("the City") in the Circuit Court of Dane County, Wisconsin. He alleged employment discrimination and retaliation. However, he did not properly serve the City. Nevertheless, once the City came into possession of the complaint, it removed Mr. Silva's action to the United States District Court for the Western District of Wisconsin. However, it did not answer the complaint. Consequently, Mr. Silva moved for entry of a default judgment for failure to answer or otherwise defend the action. The district court denied the motion for a default judgment. Mr. Silva subsequently served the City with a summons and complaint. After discovery, partial summary judgment was granted for the City. Mr. Silva's remaining allegations were tried before a jury; a verdict was returned for the City. Mr. Silva now appeals the district court's judgment. He submits that the district court erred in denying his motion for a default judgment. Because the City never received proper service prior to the filing of the motion for default, we affirm the judgment of the district court.

I. BACKGROUND

This action was originally commenced in state court on October 19, 1992. Mr. Silva alleged employment discrimination and retaliation. See 42 U.S.C. sec. 1983; 42 U.S.C. secs. 2000e, et seq. On October 20, 1992, he delivered a copy of the complaint and summons to counsel for the City (Attorneys Bradley D. Armstrong and Michael J. Modl of the law firm of Axley Brynelson). However, because the City had not authorized counsel to receive service of process on its behalf, this delivery did not constitute service upon the City. On October 22, 1992, Mr. Silva filed an amended complaint with the Dane County Circuit Court. On that same day, Mr. Silva, as he had done the first time, delivered a copy of the amended complaint to counsel for the City. The City still had not been served.

On November 5, 1992, the City filed a notice of removal in the United States District Court for the Western District of Wisconsin. On November 16, 1992, Mr. Silva filed a notice of motion, motion for entry of default and application for judgment of default on the ground that the City had failed to plead or otherwise defend. See Fed. R. Civ. P. 55(a). On December 1, 1992, after a pretrial conference, the district court denied Mr. Silva's request for a default judgment. Mr. Silva then properly served the City, and, on December 14, 1992, the City first answered the complaint. As we have already noted, the litigation then proceeded to judgment on the merits and the City prevailed.

II. DISCUSSION

A.

Mr. Silva submits that, because the City did not file an answer or otherwise respond to Mr. Silva's complaint within the time prescribed by Federal Rule of Civil Procedure 81(c), the City had "failed to plead or otherwise defend" as required by Rule 55(a). He contends that the district court therefore erred in denying the motion for a default judgment. Mr. Silva concedes that, at the time he filed his motion for a default judgment, he had not served properly the City. *fn1 He maintains, however, that, because the City received the amended complaint on October 22, 1992, *fn2 Rule 81(c) of the Federal Rules of Civil Procedure required the City to file a responsive pleading within the later of twenty days after receipt of a copy of the amended complaint (November 12, 1992) or five days after filing the petition for removal (November 10, 1992). Because the City failed to file any responsive pleadings by November 12, 1993, Mr. Silva maintains that the district court erred in denying his motion for a default judgment under Rule 55(a).

B.

1.

In assessing Mr. Silva's contention, we begin with the text of Rule 81(c). See Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123 (1989); Roe v. O'Donohue, 38 F.3d 298, 302-03 (7th Cir. 1994). We must remember, however, that a single rule cannot be read in a vacuum. It must be read in light of the statutory commands of the federal judicial code; it also must be read in light of the structure of the entire Rules of Civil Procedure. See Maybin v. Northside Correctional Ctr., 891 F.2d 72, 74 (4th Cir. 1989) ("Rules of civil procedure must be considered in relation to one another and construed together."); Nasser v. Isthmian Lines, 331 F.2d 124, 127 (2d Cir. 1964) ("[I]t is essential that we ...


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