Case 1:16-cv-01606-RCL Document 14 Filed 09/15/16 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PATRICIA SMITH and CHARLES
WOODS,
Plaintiffs,
No. 1:16-cv-01606-RCL

v.
HILLARY RODHAM CLINTON,
Defendant.

DEFENDANT HILLARY RODHAM CLINTON’S
MOTION TO VACATE ENTRY OF DEFAULT

David E. Kendall (D.C. Bar No. 252890)
Katherine M. Turner (D.C. Bar No. 495528)
Amy Mason Saharia (D.C. Bar No. 981644)
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, DC 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
Counsel for Defendant Hillary Rodham
Clinton

Case 1:16-cv-01606-RCL Document 14 Filed 09/15/16 Page 2 of 19

TABLE OF CONTENTS
Page
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................1
A. 

Plaintiffs’ Claims .....................................................................................................1

B. 

Plaintiffs’ Motion for Entry of Default ....................................................................2

ARGUMENT ...................................................................................................................................5
I. 

Plaintiffs Have Not Effectuated Service on Secretary Clinton. ...........................................6

II. 

Plaintiffs Have Not Established That They Served the United States. ..............................11

III. 

Once Service on Secretary Clinton and the United States Is Effective, Secretary
Clinton Has 60 Days To Answer the Complaint. ..............................................................13

IV. 

If This Court Concludes That Secretary Clinton Is in Default, the Default Should
Be Excused.........................................................................................................................14

CONCLUSION ..............................................................................................................................15 

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INTRODUCTION
Pursuant to Federal Rule of Civil Procedure 55(c), Defendant and former Secretary of State
Hillary Rodham Clinton respectfully requests that this Court vacate the default entered on September 9, 2016. Secretary Clinton is not in default, and the clerk’s entry of default was therefore
in error. Plaintiffs have not effectuated service on Secretary Clinton pursuant to their chosen
method under New York law. Moreover, because Plaintiffs are suing Secretary Clinton for alleged
acts occurring in connection with duties she performed on behalf of the United States, Plaintiffs
were required to serve the United States, and Secretary Clinton has 60 days to respond to the
complaint upon the later of service upon the United States or Secretary Clinton. Plaintiffs’ request
for entry of default was an improper publicity stunt, and this Court should vacate the entry of
default.
BACKGROUND
A.

Plaintiffs’ Claims

Plaintiffs are each a parent to a victim of the tragic attack on American facilities in Benghazi, Libya on September 11–12, 2012. See Compl. ¶¶ 4–5 (Dkt. #1). At the time of the attack,
Defendant Hillary Rodham Clinton served as U.S. Secretary of State.
In their complaint, Plaintiffs allege that “[d]uring her tenure as Secretary of State, Secretary
Clinton utilized her private e-mail server to send and receive information about the location of
Ambassador Christopher Stevens and thus the U.S. Department of State and the covert Central
Intelligence Agency (‘CIA’) and other government operations in Benghazi, Libya.” Id. ¶ 15.
Plaintiffs further allege, without any factual basis, that “[t]his information was intercepted by foreign powers, including but not limited to, Russia, Iran, China, and North Korea.” Id. According
to Plaintiffs, “Islamic terrorists obtained the information . . . and used it to plan, orchestrate, and
carry out the horrific and devastating attack on the American diplomatic compound in Benghazi.”
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Id. ¶ 16. Plaintiffs thus allege that Secretary Clinton’s handling of “confidential and classified
information” on her e-mail server proximately caused the deaths of Plaintiffs’ decedents. Id. ¶ 17.
On the basis of these unfounded allegations, Plaintiffs sue Secretary Clinton for wrongful death,
negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress.
Plaintiffs further allege that, during a private meeting with Plaintiffs at Joint Base Andrews
on September 14, 2012, Secretary Clinton “lied to Plaintiffs and told Plaintiffs that the Benghazi
Attack was the result of the anti-Muslim YouTube video that had been posted online and that the
creator of the video would be arrested.” Id. ¶ 19. Since that meeting, Plaintiffs have publicly
accused Secretary Clinton of lying to them during the meeting. Secretary Clinton has publicly
stated that she did not lie to Plaintiffs during the meeting. See id. ¶ 23. Plaintiffs are asserting
claims against Secretary Clinton for defamation and false light based on this set of statements.
B.

Plaintiffs’ Motion for Entry of Default

Plaintiffs are represented in this lawsuit by Larry Klayman, Esq. Mr. Klayman is an active
litigant who repeatedly brings meritless lawsuits against public officials. This Court and others
have frequently reprimanded Mr. Klayman for his improper litigation conduct.1

1

See, e.g., Klayman v. Judicial Watch, Inc., 802 F. Supp. 2d 137, 149, 150 (D.D.C. 2011) (imposing sanctions in light of Klayman’s “pattern of intransigence and disrespect for the Court’s authority”); Alexander v. FBI, 186 F.R.D. 188, 190 (D.D.C. 1999) (stating that “[t]he court has grown
weary of plaintiffs’ counsel’s use—and abuse—of the discovery process”); see also, e.g., MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 138 F.3d 33, 37–39 (2d Cir. 1998) (affirming order barring Plaintiff from further pro hac vice practice before a district judge where Plaintiff sent the
judge an “insulting” letter “strongly implying that he was not impartial based solely on his appointment by the Clinton Administration and on his being Asian-American”); Baldwin Hardware
Corp. v. Franksu Enter. Corp., 78 F.3d 550, 562 (Fed. Cir. 1996) (affirming sanctions where the
district court “considered Mr. Klayman to have acted in bad faith, in particular by making certain
misrepresentations to the court”); Klayman v. City Pages, No. 5:13-cv-143-Oc-22PRL, 2015 WL
1546173, at *17 (M.D. Fla. Apr. 3, 2015) (warning Klayman to “keep in mind his obligations
under Federal Rule of Civil Procedure 11”), aff’d, 2016 WL 3033141 (11th Cir. May 27, 2016).
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Secretary Clinton has borne the burden of defending against Mr. Klayman’s tactics time
and again: this is at least the eighteenth time that Mr. Klayman has sued former Secretary Clinton
or former President Clinton. Nearly all of those lawsuits failed before or upon a motion to dismiss,2
and Mr. Klayman has not prevailed on the merits on a single claim over his decades-long history
of suing the Clintons.3
Needless to say, Mr. Klayman and undersigned counsel have been frequent adversaries. In
a recent case in which Mr. Klayman unsuccessfully sued Secretary Clinton,4 Mr. Klayman contacted undersigned counsel and asked counsel to accept service of process for Secretary Clinton.
Undersigned counsel agreed to do so as a courtesy, and the parties agreed upon a date by which
Secretary Clinton would respond to the complaint. Mr. Klayman elected not to notify counsel in
this case. Instead, Mr. Klayman served the complaint on an unidentified security guard and then
filed a wholly improper affidavit claiming, incorrectly, that Secretary Clinton is in default.
Plaintiffs filed their complaint on August 8, 2016 and obtained a summons directed to Secretary Clinton. See Dkt. #1. The next day, Plaintiffs filed a request for summons to issue to the
U.S. Attorney General and the U.S. Attorney for the District of Columbia. See Dkt. ##4–5. The
clerk promptly issued the requested summons. See Dkt. #6.

2

See Judicial Watch, Inc. v. Clinton, No. 94-cv-1688 (D.D.C.); Meng v. Schwartz, No. 98-cv-2859
(D.D.C.); Judicial Watch, Inc. v. Deutsche Bank, A.G., No. 99-cv-2566 (D.D.C.); Hall v. Clinton,
No. 99-cv-3281 (D.D.C.); Schwicker v. Clinton, No. 00-cv-2252 (D.D.C.); Meng v. Schwartz, No.
01-cv-1715 (D.D.C.); Barr v. Clinton, No. 02-cv-437 (D.D.C.); Judicial Watch, Inc. v. Clinton,
No. 02-cv-1633 (D.D.C.); Rodearmel v. Clinton, No. 09-cv-171 (D.D.C.); Klayman v. Obama, No.
14-cv-1484 (D.D.C.); Paul v. Clinton, No. BC252654 (Cal. Super. Ct.); Stern v. Buckle, No.
103916/07 (N.Y. Sup. Ct.); Klayman v. Clinton, No. 15-cv-80388 (S.D. Fla.).
3

See supra note 2; see also Alexander v. FBI, No. 96-cv-2123 (D.D.C.); Grimley v. FBI, No. 97cv-1288 (D.D.C.); Browning v. Clinton, No. 98-cv-1991 (D.D.C.); Flowers v. Carville, No. 99cv-1629 (D. Nev.).
4

See Klayman v. Clinton, No. 15-cv-80388 (S.D. Fla.).
3

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Plaintiffs moved for entry of default on September 8, 2016. See Dkt. #7. They attached a
return-of-service affidavit to the motion. See Dkt. ##7–8. Plaintiffs had not filed proof of service
before that date. According to the return-of-service affidavit, on August 11, 2016, a process server
delivered copies of the complaint and summons to an unidentified security guard at the building
where Secretary Clinton’s Campaign office is located. Neither Secretary Clinton nor her counsel
were aware that a security guard had accepted copies of the complaint and summons addressed to
Secretary Clinton until Plaintiffs filed their motion for entry of default.
The return-of-service affidavit also states that copies of the complaint and summons were
mailed to the Campaign office on August 11, 2016. Undersigned counsel learned of the receipt of
the mailed copies on August 25, 2016. Due to security screening measures applied to mail received
at Secretary Clinton’s Campaign office, the Campaign office did not receive those copies by mail
until August 25.
Undersigned counsel became aware of the lawsuit shortly after its filing through news reports and began monitoring the case docket. Because Plaintiffs are suing for alleged acts occurring
in connection with the performance of Secretary Clinton’s duties, after learning of the lawsuit,
undersigned counsel contacted the State Department to request that the U.S. Government provide
representation to Secretary Clinton in this matter. Undersigned counsel understands that the request is under consideration by the State Department. Plaintiffs’ motion for entry of default does
not indicate that service has been made on the U.S. Attorney General or the U.S. Attorney for the
District of Columbia, notwithstanding that Plaintiffs specifically requested the issuance of summons to those individuals.

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On September 13, 2016, undersigned counsel conferred with counsel for Plaintiffs to determine whether Plaintiffs would consent to the relief requested in this motion. Plaintiffs’ counsel
stated that Plaintiffs would not consent.
ARGUMENT
Under Rule 55(c) of the Federal Rules of Civil Procedure, “good cause” exists to vacate
the default entered by the clerk in this case. Because Plaintiffs have not effected service properly,
the time for answering the complaint has not even commenced. And, even if it had, Rule 12(a)(3)
provides Secretary Clinton with 60 days (after service on both Secretary Clinton and the U.S.
Government) to respond to the complaint because Plaintiffs are suing for alleged acts performed
in connection with Secretary Clinton’s duties as Secretary of State. The request for entry of default
was thus improper and should not have been granted.
Defaults “are not favored by modern courts” in light of “strong policies favoring the resolution of genuine disputes on their merits.” Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980).
In deciding whether good cause exists to vacate the entry of default, courts typically consider (1)
whether the default was willful, (2) whether vacating the default would prejudice the plaintiff, and
(3) whether the alleged defense is meritorious. Keegel v. Key W. & Caribbean Trading Co., 627
F.2d 372, 373 (D.C. Cir. 1980). By definition, good cause exists to vacate the entry of default
when the defendant is not actually in default because the time for answering the complaint has not
come due. See, e.g., Ilaw v. Dep’t of Justice, 309 F.R.D. 101, 105 (D.D.C. 2015) (holding that
default was erroneously granted where “service was not properly effected” on the defendant);
Koerner v. United States, 246 F.R.D. 45, 47 (D.D.C. 2007) (granting motion to vacate default
where “there was an error in effecting service and the Government had no obligation to file an
Answer”); Baade v. Price, 175 F.R.D. 403, 406 (D.D.C. 1997) (vacating default where service had
not been perfected).
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I.

Plaintiffs Have Not Effectuated Service on Secretary Clinton.
Secretary Clinton has not defaulted on an obligation to respond to Plaintiffs’ complaint.

Under Rule 12 of the Federal Rules of Civil Procedure, a defendant’s time for responding to the
complaint begins to run once the defendant has “been served with the summons and complaint.”
Fed. R. Civ. P. 12(a)(1)(A); see also Fed. R. Civ. P. 12(a)(3). In this case, service of the summons
and complaint on Secretary Clinton is not yet effective, and as a result her time for responding to
the complaint has not yet begun to run.
Under Rule 4(e), a plaintiff may serve an individual defendant by (a) delivering a copy of
the complaint and summons to the defendant personally; (b) leaving a copy of each with someone
of suitable age and discretion at the individual’s dwelling place; or (c) delivering copies of each to
an agent authorized to accept service of process. Fed. R. Civ. P. 4(e)(2). Alternatively, a plaintiff
may “follow[] state law for serving a summons in an action brought in courts of general jurisdiction
in the state where the district court is located or where service is made.” Fed. R. Civ. P. 4(e)(1).
Plaintiffs’ counsel claims to have served Secretary Clinton by leaving a copy of the complaint and summons with a security guard in the building where her Campaign office is located
and then mailing a copy of the complaint and summons to Secretary Clinton at her Campaign
office. See Dkt. #7 ¶ 6 & Ex. 2. That method of serving an individual defendant is not authorized
by the Federal Rules. See Fed. R. Civ. P. 4(e)(2); see also Davidson v. U.S. Dep’t of State, 113 F.
Supp. 3d 183, 195 (D.D.C. 2015) (holding that “[d]elivering the complaint and summons to a
workplace colleague” does not satisfy Rule 4(e)(2)). The relevant inquiry thus becomes whether
Plaintiffs complied with the laws governing service of process in the District of Columbia, where
this action is pending, or in New York, where Plaintiffs attempted to effectuate service on August
11, 2016. See Fed. R. Civ. P. 4(e)(1).

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Under D.C. law, service may be made on an individual defendant by mailing a copy of the
summons and complaint to the defendant by registered or certified mail, return receipt requested;
by delivering copies of each to the defendant personally; by leaving copies of each with someone
of suitable age or discretion at the defendant’s dwelling place; or by delivering copies of each to
an agent authorized to accept service of process. See D.C. R. Civ. P. 4(c)(3), 4(e)(2). Plaintiffs’
proof-of-service affidavit does not establish compliance with any of these methods.
In New York, service of process on individual defendants is governed by N.Y. C.P.L.R.
§ 308. Section 308 provides in relevant part:
Personal service upon a natural person shall be made by any of the following methods:
1. by delivering the summons within the state to the person to be served; or
2. by delivering the summons within the state to a person of suitable age and
discretion at the actual place of business, dwelling place or usual place of abode of
the person to be served and by either mailing the summons to the person to be
served at his or her last known residence or by mailing the summons by first class
mail to the person to be served at his or her actual place of business in an envelope
bearing the legend “personal and confidential” and not indicating on the outside
thereof, by return address or otherwise, that the communication is from an attorney
or concerns an action against the person to be served, such delivery and mailing to
be effected within twenty days of each other; proof of such service shall be filed
with the clerk of the court designated in the summons within twenty days of either
such delivery or mailing, whichever is effected later; service shall be complete ten
days after such filing; proof of service shall identify such person of suitable age and
discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the
domestic relations law; or
3. by delivering the summons within the state to the agent for service of the
person to be served as designated under rule 318 . . . .
It appears that Plaintiffs are claiming to have effected service under section 308(2) of this provision. See supra p.6. Under section 308(2), however, a plaintiff must file “proof of such service
. . . with the clerk of the court designated in the summons within twenty days of either such delivery

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or mailing, whichever is effected later.” N.Y. C.P.L.R. § 308(2). Service is deemed “complete”
ten days after the filing of proof of service. Id. A defendant’s time for answering is triggered by
completion of service under this provision. See N.Y. C.P.L.R. § 320(a) (“[T]he [defendant’s]
appearance shall be made within thirty days after service is complete.”).
Because service is not effective under section 308(2) until ten days after the filing of proof
of service, New York courts hold that defendants cannot be held in default if the plaintiff has not
filed the requisite proof of service. See, e.g., Pipinias v. J. Sackaris & Sons, Inc., 116 A.D.3d 749,
750 (2014) (holding that a defendant’s “time to answer never began to run” because the plaintiff
failed to file proof of service of the summons and complaint within 20 days); Bank of New York v.
Schwab, 97 A.D.2d 450, 450 (1983) (vacating a default judgment because the plaintiff’s failure to
file proof of service within section 308(2)’s 20-day period meant that the defendant’s “time to
answer never began to run”); see also Rosato v. Ricciardi, 174 A.D.2d 937, 938 (1991) (citing
cases interpreting section 308(4)’s identical proof-of-service requirement and vacating the entry
of default). The requirement to file timely proof of service is not jurisdictional, meaning that a
plaintiff can cure the failure by requesting leave to file proof of service nunc pro tunc. See Rosato,
174 A.D.2d at 937–38. But failure to file timely proof of service is a “defect” in service, see Stop
& Shop Supermarket Co. v. Goldsmith, No. 10-CV-3052, 2011 WL 1236121, at *5 (S.D.N.Y. Mar.
31, 2011), and service is not effective until ten days after the proof of service has been timely filed,
see N.Y. C.P.L.R. § 308(2).
Plaintiffs did not file proof of service in this Court within twenty days of August 11, 2016.
In fact, Plaintiffs did not file proof of service until they filed their motion for entry of default on
September 8, 2016. As a result, Plaintiffs did not properly serve Secretary Clinton in compliance

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with section 308(2) before filing their motion for default, and Secretary Clinton’s time for responding to the complaint under Rule 12(a) had not begun to run.
The question whether a plaintiff invoking the procedures for effecting service under N.Y.
C.P.L.R. § 308(2) in federal court must file the required proof of service appears to be a question
of first impression in this Circuit. The Second Circuit has held that the comparable proof-ofservice requirement set forth in section 308(4) (which authorizes the “nail and mail” method of
service) does not apply when a plaintiff seeks to serve process pursuant to state law under Rule
4(e)(1). See Bellor & Kellor v. Tyler, 120 F.3d 21, 25–26 (2d Cir. 1997). In Bellor & Kellor, the
Second Circuit reasoned that, under Rule 12(a), federal law, and not state law, governs the “‘time
for answer.’” Id. at 25 (quoting 127 F.R.D. 237, 306–07 (1989)). According to the Second Circuit,
because the proof-of-service requirement of section 308(4) merely “trigger[s] the thirty-day time
limit in which to file an answer in state court,” it “has no bearing on calculating the time in which
to answer in federal practice.” Id. at 26. As a result, the court held that, under Rule 12(a), “a
defendant has [21] days from receipt of the summons to file an answer.” Id. at 25–26 (emphasis
added).
In reaching this conclusion, the Second Circuit misread both the Federal Rules and N.Y.
C.P.L.R. § 308. Rule 12(a) does not provide that a defendant’s time to answer is triggered by
“receipt of the summons.” Bellor & Kellor, 120 F.3d at 25–26. Rule 12(a)(1) requires a defendant
to respond “within 21 days after being served.” Fed. R. Civ. P. 12(a)(1) (emphasis added). Rule
12(a)(3) likewise requires a defendant sued in an individual capacity for acts occurring in connection with official duties, as in this case, to answer “within 60 days after service” on the individual
or U.S. Attorney, whichever is later. Fed. R. Civ. P. 12(a)(3) (emphasis added). When a plaintiff
seeks to effectuate service pursuant to Rule 4(e)(1), it is the law of the state where the district court

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is located or where service is made that defines the terms “service” and “served.” Under New
York law, which Plaintiffs appear to invoke here, service is not effective until 10 days after the
filing of proof of service. See N.Y. C.P.L.R. § 308(2) (“[S]ervice shall be complete ten days after
such filing . . . .”); see also Stop & Shop Supermarket, 2011 WL 1236121, at *5 (“[T]he importance
of the proof of service requirement demonstrates that a defendant is not properly . . . served before
it is satisfied . . . .” (internal quotation marks omitted) (first omission in original)).
The Second Circuit further erred in treating the time periods set forth in section 308 as
governing a defendant’s “time to answer.” Bellor & Kellor, 120 F.3d at 25 (internal quotation
marks omitted). Under New York law, a defendant’s time to answer is governed by a separate
statute, N.Y. C.P.L.R. § 320(a). The requirements set forth in section 308(2), by contrast, define
when the obligation to answer is triggered by reason of effective service. See, e.g., Pipinias, 116
A.D.3d at 750 (holding that the failure to file proof of service meant that the defendant’s “time to
answer never began to run”); Schwab, 97 A.D.2d at 450 (same). There is no conflict between
holding a federal-court plaintiff to the requirements of section 308(2) and the principle that federal
law governs the time to answer under Rule 12(a).5
The Second Circuit’s decision strips defendants of important safeguards provided by New
York law. In permitting service upon an individual by delivery to any person of suitable age and
discretion at a defendant’s place of business and by unregistered mail, New York law is considerably laxer than the federal and D.C. rules governing service of process on individuals. See supra
pp. 6–7. As a counterbalance to this laxity, New York law requires that the plaintiff file proof of

5

Nor is there any conflict between holding a plaintiff to the filing requirement of section 308(2)
and Rule 4(l)(3), which provides that “[f]ailure to prove service does not affect the validity of
service.” Fed. R. Civ. P. 4(l)(3). That provision pertains to the requirement to prove service under
Rule 4(l)(1). It does not purport to define the requirements for “validity of service” made pursuant
to state law.
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service on the public docket before service will be deemed effective. Notably, if a plaintiff serves
a defendant in person under section 308(1), rather than using the alternative method provided by
308(2), there is no requirement to file proof of service before service is deemed effective. Compare N.Y. C.P.L.R. § 308(1), with id. § 308(2). The Second Circuit’s reasoning in Bellor & Kellor
permits plaintiffs to take advantage of New York’s laxer procedures for making alternative service
on individuals without complying with the additional safeguards required by New York law.
Because Plaintiffs did not file timely proof of service in this Court, they did not properly
serve Secretary Clinton under section 308(2). Even accepting Plaintiffs’ motion for entry of default as a motion to accept their untimely proof of service nunc pro tunc, Secretary Clinton’s time
for responding to the complaint had not commenced when they filed the motion, as service was
not yet “complete.” N.Y. C.P.L.R. § 308(2). The default thus was entered in error, and good cause
exists to vacate it.
II.

Plaintiffs Have Not Established That They Served the United States.
Even if service upon Secretary Clinton was effective as of August 11, 2016, Plaintiffs were

also required to serve the United States. Under Rule 4(i)(3) of the Federal Rules of Civil Procedure, when a plaintiff sues “a United States officer or employee . . . in an individual capacity for
an act or omission occurring in connection with duties performed on the United States’ behalf,”
the plaintiff also must serve the United States. To serve the United States, a plaintiff must serve
both the U.S. Attorney in the judicial district in which the action is brought and the U.S. Attorney
General. See Fed. R. Civ. P. 4(i)(1). The requirement to serve the United States is intended “to
protect the interest of the individual defendant in securing representation by the United States” and
to “expedite the process of determining whether the United States will provide representation.”
Fed. R. Civ. P. 4 advisory committee’s notes to 2000 amendment.

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The requirement to serve the United States applies in cases where, as here, a plaintiff sues
a former United States officer or employee for acts or omissions occurring in connection with her
official duties. See id. “Termination of the relationship between the individual defendant and the
United States does not reduce the need to serve the United States.” Id.
Plaintiffs unquestionably are suing Secretary Clinton for alleged acts “occurring in connection with duties performed on the United States’ behalf.” Fed. R. Civ. P. 4(i)(3). Plaintiffs
concede as much in their complaint. They allege that, “Defendant Clinton, as Secretary of State,
sent or received information about Ambassador Christopher Stevens and thus the U.S. Department
of State activities and covert operations that the deceased were a part of in Benghazi, Libya,”
purportedly causing Plaintiffs’ decedents’ deaths. Compl. at 1–2 (emphasis added). If Secretary
Clinton did send or receive “confidential and classified” State Department information about “the
location of Ambassador Christopher Stevens,” as Plaintiffs allege, Compl. ¶ 17, the receipt or
transmission of such information obviously would have been “in connection” with Secretary Clinton’s duties as Secretary of State, Fed. R. Civ. P. 4(i)(3).
That Secretary Clinton used a private e-mail account to conduct work-related business does
not alter this analysis. Under D.C. law, conduct of a servant is within the scope of employment if
it (a) “is of the kind [she] is employed to perform; (b) it occurs substantially within the authorized
time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the master.”
Wilson v. Libby, 535 F.3d 697, 711 (D.C. Cir. 2008) (internal quotation marks omitted). Secretary
Clinton’s alleged transmission of confidential and classified e-mails about the location of a U.S.
ambassador easily satisfies this test, “regardless of whether it was unlawful or contrary to the national security of the United States,” as Plaintiffs allege. Id. at 712.

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Plaintiffs’ counsel explicitly acknowledged the need to serve the United States when he
filed this complaint, as he requested that summons issue to the U.S. Attorney for the District of
Columbia and the U.S. Attorney General. See supra p.3. In requesting entry of default, however,
Plaintiffs did not establish that they served the United States. As a result, Plaintiffs have not proven
service of process under Rule 4(i)(3) for purposes of obtaining entry of default.
III.

Once Service on Secretary Clinton and the United States Is Effective, Secretary
Clinton Has 60 Days To Answer the Complaint.
Rule 12(a)(3) provides that
[a] United States officer or employee sued in an individual capacity for an act or
omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60
days after service on the officer or employee or service on the United States attorney, whichever is later.

The purpose of this rule is “to give the United States adequate time to determine whether it should
represent the defendant officer or employee who has been sued in an individual capacity.” Charles
Alan Wright, et al., 4B Federal Practice & Procedure § 1107 (4th ed. 2015). As set forth in Part
II, Plaintiffs are suing Secretary Clinton in her individual capacity for acts “occurring in connection
with duties performed on the United States’ behalf.” Fed. R. Civ. P. 12(a)(3). Secretary Clinton
therefore has 60 days to respond to the complaint—not 21 days, as Plaintiffs’ counsel incorrectly
represented in his affidavit to this Court. This case illustrates the reason for this rule; as discussed
above, undersigned counsel understands that Secretary Clinton’s request for representation in this
matter is under consideration by the State Department. Even under Plaintiffs’ incorrect view that
service was complete on August 11, 2016, the 60-day period has not yet expired. For this reason
as well, Secretary Clinton is not in default.

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IV.

If This Court Concludes That Secretary Clinton Is in Default, the Default Should Be
Excused.
For the reasons already set forth, Secretary Clinton is not in default, as the time for answer-

ing the complaint has not come due. If, however, this Court concludes that Secretary Clinton has
technically defaulted on her obligation to answer the complaint (she has not), good cause exists to
excuse the default under the three-part test applied in this Circuit. See supra p.5. First, Secretary
Clinton’s default was not willful, as Secretary Clinton and her counsel were unaware that a security
guard had accepted copies of the complaint and summons on August 11, 2016. Moreover, Secretary Clinton has a good-faith basis for believing that she has 60 days to answer the complaint under
Rule 12(a)(3) and has requested representation by the United States in this matter. Second, Plaintiffs will not be prejudiced by this minor delay. In a recent public statement (incorrectly) castigating Secretary Clinton for being in default, Plaintiffs’ counsel, Mr. Klayman, acknowledged that
this case does not require urgent resolution, stating, “This case is not going to be decided before
the election, it was not brought for that purpose.”6 Finally, Secretary Clinton has a legitimate
defense to Plaintiffs’ claims. Plaintiffs’ claim that Secretary Clinton is responsible for their decedents’ deaths, which has no factual particularity, is implausible, speculative, and contradicted by
the FBI’s recent statement that it did not find evidence that Secretary Clinton’s e-mail account was
hacked.7 Mr. Klayman’s assertion of this claim surely mandates an exacting scrutiny under Rule
11 of the Federal Rules of Civil Procedure. And Plaintiffs’ “defamation” claims based on Secretary Clinton’s statements about this public controversy are plainly not actionable.

6

See http://thehill.com/policy/national-security/295598-clinton-in-default-in-wrongful-deathsuit.

7

See https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b-comeyon-the-investigation-of-secretary-hillary-clinton2019s-use-of-a-personal-e-mail-system.
14

Case 1:16-cv-01606-RCL Document 14 Filed 09/15/16 Page 17 of 19

*

*

*

One final point bears mention. Local Rule 7(g) provides that a motion to vacate entry of
default should be accompanied by “a verified answer presenting a defense sufficient to bar the
claim in whole or in part.” The apparent purpose of this Local Rule is to ensure that a defaulting
defendant has a meritorious answer to the complaint before excusing the default. In this case,
however, there is no default to excuse, for the reasons discussed above. In this circumstance, this
Court has excused formal compliance with the Local Rule. See Baade, 175 F.R.D. at 406. Secretary Clinton respectfully requests that the Court do the same in this case, as she is not in default.
Secretary Clinton, in appropriate consultation with the State Department and/or Department of Justice, will respond to the complaint at the required time. Accepting Plaintiffs’ motion
for entry of default as a motion for leave to file proof of service nunc pro tunc, service on Secretary
Clinton would be deemed complete on September 18, 2016. Secretary Clinton, however, has no
authority to excuse Plaintiffs’ apparent failure to serve the U.S. Government. Until such time as
Plaintiffs serve the U.S. Government, the 60-day period for responding to Plaintiffs’ complaint
cannot begin to run.
CONCLUSION
For the foregoing reasons, Secretary Clinton respectfully requests that this Court vacate the
erroneous entry of default pursuant to Federal Rule of Civil Procedure 55(c).

15

Case 1:16-cv-01606-RCL Document 14 Filed 09/15/16 Page 18 of 19

Respectfully submitted,
/s/ David E. Kendall
David E. Kendall (D.C. Bar No. 252890)
Katherine M. Turner (D.C. Bar No. 495528)
Amy Mason Saharia (D.C. Bar No. 981644)
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, DC 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
dkendall@wc.com
kturner@wc.com
asaharia@wc.com
Counsel for Defendant Hillary Rodham
Clinton
September 15, 2016

16

Case 1:16-cv-01606-RCL Document 14 Filed 09/15/16 Page 19 of 19

CERTIFICATE OF SERVICE
I, David E. Kendall, counsel for Defendant Hillary Rodham Clinton, certify that, on September 15, 2016, a copy of this Motion to Vacate Entry of Default was filed via the Court’s electronic filing system, and served via that system upon all parties required to be served.
/s/ David E. Kendall
David E. Kendall

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