No Default Without Proper Service: Third Circuit Reaffirms Nonparty-Service Requirement and Disfavors Defaults in Pro Se § 1983 Litigation

No Default Without Proper Service: Third Circuit Reaffirms Nonparty-Service Requirement and Disfavors Defaults in Pro Se § 1983 Litigation

Introduction

In John M. Gera v. Borough of Frackville, the United States Court of Appeals for the Third Circuit affirmed the dismissal with prejudice of a pro se plaintiff’s civil rights action, issuing a nonprecedential opinion that nonetheless offers clear guidance on two recurring procedural traps: (1) who may properly effect service of process, and (2) when default and default judgment are appropriate. Although the case arose from a broader dispute involving Pennsylvania’s Right-to-Know Law (RTKL) and alleged civil rights violations under 42 U.S.C. § 1983, the Third Circuit resolved the appeal on narrow procedural grounds. The panel held that Gera forfeited any challenge to the merits of the Rule 12(b)(6) dismissal by failing to brief those issues on appeal, and it rejected his contention that he was entitled to default judgment because the defendants did not timely answer. Central to the Court’s reasoning was the principle that a party may not serve his own lawsuit, whether by mail or otherwise, and that improper service prevents the clock from running for purposes of default and Rule 12 responses.

The decision will be of particular interest to pro se litigants, municipal defendants, and practitioners navigating the interface between federal procedural rules and Pennsylvania service requirements. It also underscores, albeit indirectly, the limits of federal jurisdiction under the Rooker-Feldman doctrine when litigants attempt to relitigate state-court RTKL outcomes via federal civil rights claims.

Summary of the Opinion

The Third Circuit (Judges Matey, Montgomery-Reeves, and Nygaard) affirmed the Middle District of Pennsylvania’s dismissal with prejudice of Gera’s second amended complaint. On appeal, Gera did not challenge the District Court’s Rule 12(b)(6) merits determinations. Instead, he argued that the defendants’ failure to answer entitled him to an entry of default and default judgment. The Third Circuit rejected that argument for several independent reasons:

  • Entry of default under Rule 55(a) requires a showing (often by affidavit) that the opposing party failed to plead or otherwise defend; Gera’s initial request lacked the necessary affidavit.
  • By the time Gera supplied affidavits (much later), defendants had already “otherwise defend[ed]” by filing a Rule 12 motion to dismiss, which undercuts default.
  • Even if a clerk’s default had been entered, default judgment was unavailable because Gera did not present a “sum certain” or a proper application establishing damages as Rule 55(b) requires; default judgments are disfavored and doubtful cases are resolved against default.
  • Most importantly, Gera’s initial service was improper: a party cannot serve process himself under Federal Rule of Civil Procedure 4(c)(2), and Pennsylvania law likewise requires service by a sheriff or another competent, disinterested adult. Because service was defective, the defendants’ Rule 12 motion was deemed timely and default could not lie.

Separately, the Court noted that Gera forfeited any challenge to the District Court’s dismissal of his substantive claims—among other things, under Rooker-Feldman and for pleading deficiencies—by not briefing those issues. The judgment was therefore affirmed. The Court also denied Gera’s motion to strike the defendants’ supplemental appendix and denied as moot the defendants’ motion to strike Gera’s motion.

Analysis

Precedents and Authorities Cited

  • Barna v. Board of School Directors of Panther Valley School District, 877 F.3d 136 (3d Cir. 2017): Cited for the principle that issues not raised in an appellant’s opening brief are forfeited. This controlled the Court’s decision not to reach the merits of the Rule 12(b)(6) dismissal.
  • Schmidt v. Skolas, 770 F.3d 241 (3d Cir. 2014): Provided the standard of review—de novo—for dismissal under Rule 12(b)(6).
  • Chamberlain v. Giampapa, 210 F.3d 154 (3d Cir. 2000): Established abuse-of-discretion review for a district court’s refusal to enter default judgment.
  • United States v. $55,518.05 in U.S. Currency, 728 F.2d 192 (3d Cir. 1984), and Tozer v. Charles A. Krause Milling Co., 189 F.2d 242 (3d Cir. 1951): Both underscore that defaults and default judgments are disfavored and that doubts are to be resolved in favor of adjudication on the merits.
  • Constien v. United States, 628 F.3d 1207 (10th Cir. 2010), citing Wright & Miller: Quoted for the straightforward proposition that “only a nonparty can place the summons and complaint in the mail” for purposes of service.
  • Federal Rules of Civil Procedure:
    • Rule 4(c)(2): Service must be made by a nonparty adult.
    • Rule 4(e)(1): Permits use of state-law service methods where service is made.
    • Rule 12: Governs timing for Rule 12 motions and responsive pleadings.
    • Rule 55(a)-(b): Sets the two-step procedure for entry of default and default judgment.
  • Pennsylvania Rules of Civil Procedure:
    • Pa. R. Civ. P. 400: Original process is generally served by a sheriff or, in limited circumstances, another competent adult.
    • Pa. R. Civ. P. 76: Defines “competent adult” as someone at least 18 who is not a party, nor an employee or relative of a party.
  • State proceedings: Gera v. Borough of Frackville, No. 192 C.D. 2020, 2021 WL 1573834 (Pa. Cmwlth. Ct. Apr. 22, 2021), allocatur denied, No. 109 MM 2021 (Pa. Jan. 4, 2022). This background mattered to the District Court’s Rooker-Feldman ruling (which the Third Circuit did not reach due to forfeiture).

Legal Reasoning

1) Forfeiture on Appeal

The Court first applied Barna to hold that Gera forfeited any challenge to the District Court’s decision on the merits because he did not brief those issues. This procedural posture constrained the appellate analysis to his default/default-judgment arguments and associated service issues.

2) The Two-Step Default Mechanism under Rule 55

Rule 55 imposes a sequential structure: (a) an entry of default by the Clerk upon a proper showing that the defendant failed to plead or otherwise defend; (b) a subsequent application for default judgment—by the Clerk for a “sum certain,” or by the court in all other cases. The Court noted multiple defects in Gera’s approach:

  • His initial request for entry of default lacked the necessary affidavit or equivalent showing under Rule 55(a).
  • By the time he later submitted affidavits, defendants had already moved to dismiss. A Rule 12 motion constitutes “otherwise defend[ing]” within the meaning of Rule 55(a), defeating default.
  • Even assuming arguendo that the Clerk should have entered default earlier, Gera was not entitled to default judgment because his claim was not for a sum certain, and he failed to present a proper application substantiating damages. Given the Third Circuit’s general disfavor for defaults, the absence of prejudice and the defendants’ active defense made default judgment inappropriate.

3) Improper Service of Process and Its Consequences

The Court’s most consequential holding concerns service of process:

  • Federal Rule 4(c)(2) requires that service be made by “any person who is at least 18 years old and not a party.” Mailing the summons and complaint oneself as a party is categorically improper.
  • Rule 4(e)(1) allows service to follow state law; Pennsylvania law similarly forbids party-service and, for original process, ordinarily requires a sheriff or another “competent adult” who is not a party, employee, or relative. Gera, as a party, did not qualify.
  • Citing Constien and respected treatise authority, the panel emphasized that “only a nonparty can place the summons and complaint in the mail” for service purposes. Gera’s initial attempt—personally sending first-class mail—was therefore invalid.
  • Because service was invalid, the defendants were not in default, the timetable for responding was not triggered, and their Rule 12 motion was deemed timely. This, in turn, foreclosed any entitlement to entry of default or default judgment and undermined Gera’s motion for summary judgment (which was also premature in light of undeveloped discovery).

4) District Court Merits Rulings (Not Reached on Appeal)

Although not challenged on appeal, the District Court’s merits analysis deserves brief mention for context:

  • Rooker-Feldman: The court held that Gera’s federal claims, to the extent they effectively asked the federal court to review and overturn Pennsylvania state-court judgments under the RTKL, were barred.
  • No Private Right of Action: Several statutory citations in the complaint did not create private causes of action.
  • § 1983 Pleading Deficiencies: The complaint failed to plausibly allege deprivation of a liberty interest, and conspiracy theories failed absent an underlying constitutional violation.
  • State-Law Claims: With the federal claims rejected, dismissal of pendent state claims was appropriate. The court also denied further leave to amend after two unsuccessful amendments.

Impact and Practical Implications

Service of Process in Federal Court—Particularly for Pro Se Litigants

The opinion, while nonprecedential, crisply reaffirms a crucial practice point: a party cannot serve process in his own case. This prohibition includes placing the summons and complaint in the mail personally. In Pennsylvania federal cases, litigants must employ the sheriff where state law requires it or use a nonparty competent adult in accordance with Rule 4 and Pennsylvania rules. Failing to do so means:

  • The defendant’s time to respond never starts running;
  • Default cannot be entered, let alone default judgment;
  • Any “delay” arguments generally fail for lack of prejudice and because the defendant has not been properly haled into court.

Default and Default Judgment—A High Bar

The Third Circuit’s longstanding disfavor for defaults continues to guide district courts. Even where a clerk’s default might be arguable, default judgment remains discretionary and is rarely appropriate without a clean record of nonparticipation, prejudice to the plaintiff, and compliance with Rule 55’s proof requirements. Litigants must:

  • Support a Rule 55(a) request with an affidavit showing the failure to plead or defend;
  • Establish a “sum certain” for clerk-entered judgment, or present a proper damages application for court-entered judgment;
  • Anticipate that any appearance or Rule 12 motion by the defendant will defeat default.

Appellate Practice—Preserving Issues

Barna’s forfeiture principle remains decisive: issues not briefed are not considered. Appellants must squarely challenge each dispositive ruling (e.g., Rooker-Feldman, private right of action, § 1983 elements) or risk affirmance regardless of potential reversible error.

Substantive Backdrop—Rooker-Feldman and RTKL

Though not reached, the District Court’s application of Rooker-Feldman to bar federal review of state-court RTKL outcomes flags an important jurisdictional limit. Litigants who fully litigate RTKL issues in Pennsylvania courts cannot recast adverse state judgments as § 1983 claims to obtain federal review. The appropriate avenue for relief from state-court decisions is state appellate review and, where applicable, certiorari to the U.S. Supreme Court—not a new federal district court action.

Complex Concepts Simplified

  • Service of Process: The formal method of notifying a defendant of a lawsuit. Under Federal Rule 4, the server must be a nonparty adult; state law may provide additional methods. In Pennsylvania, original process is generally served by a sheriff or a nonparty “competent adult.”
  • Personal Jurisdiction via Proper Service: Courts obtain power over a defendant through proper service. Improper service means the court lacks personal jurisdiction, deadlines do not run, and defaults are improper.
  • “Sum Certain” (Rule 55(b)(1)): A fixed amount of damages ascertainable by simple calculation (e.g., unpaid invoice). If damages are not a sum certain, default judgment must be sought from the court, often requiring a hearing or detailed proof.
  • Default vs. Default Judgment: Entry of default (a notation by the Clerk) precedes default judgment (a final judgment). You cannot skip directly to default judgment; both steps require strict compliance with Rule 55.
  • Forfeiture on Appeal: If an appellant does not argue an issue in the opening brief, the appellate court treats it as forfeited and will not consider it.
  • Rooker-Feldman Doctrine: Federal district courts lack jurisdiction to sit in direct review of state-court judgments. Losers in state court cannot use federal lawsuits to overturn those judgments.
  • Dismissal “With Prejudice”: The case is closed and cannot be refiled. Courts may reach this result after repeated, unsuccessful amendments that fail to cure identified pleading defects.

Procedural Timeline (At a Glance)

  • March 2020: Gera files his federal complaint.
  • March 27, 2020: Gera personally mails the summons and complaint—an improper method of service.
  • May 5, 2020: Defendants move to dismiss under Rules 12(b)(5) and 12(b)(6).
  • May 7, 2020: Gera requests entry of default (no supporting affidavit).
  • May 18, 2020: Service is effected by the Schuylkill County Sheriff’s Department.
  • 2020–2022: Multiple amended pleadings; Gera renews default requests (with affidavits), but only after defendants have “otherwise defended.”
  • District Court: Dismisses the second amended complaint with prejudice, denies default and summary judgment.
  • Appeal: Gera argues for default/default judgment; does not brief merits. Third Circuit affirms.

Conclusion

The Third Circuit’s nonprecedential decision in Gera v. Borough of Frackville offers a straightforward but potent set of reminders:

  • Service of process must be performed by a nonparty in compliance with Rule 4 and applicable state law; a litigant cannot serve his own lawsuit, including by personally mailing the summons and complaint.
  • Default and default judgment are disfavored, strictly sequential, and available only on a proper showing. A defendant’s Rule 12 motion constitutes “otherwise defending” and defeats default.
  • Appellants must brief their challenges to the merits; failure to do so results in forfeiture and affirmance.
  • Efforts to transform state-court RTKL losses into federal § 1983 claims collide with the Rooker-Feldman jurisdictional bar, a point the District Court applied and the appellant did not contest on appeal.

While the disposition is not binding precedent under the Third Circuit’s I.O.P. 5.7, it provides persuasive, practical guidance to litigants and courts alike: strict compliance with service rules is a prerequisite to default, Rule 12 deadlines, and personal jurisdiction, and federal appellate practice demands that appellants squarely preserve and brief their claims of error.

Note on Appellate Motions

The Court authorized the appellees to file a supplemental appendix; it denied Gera’s motion to strike that submission and denied as moot appellees’ motion to strike Gera’s motion. This underscores the Court’s discretion to manage the record on appeal when additional materials assist in reviewing rulings grounded in the district court’s docket.

Case Details

Year: 2025
Court: Court of Appeals for the Third Circuit

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