Case 1:16-cv-01606-RCL Document 19 Filed 09/29/16 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PATRICIA SMITH and CHARLES

WOODS,
Plaintiffs,
v.

No. 1:16-cv-01606-RCL

HILLARY RODHAM CLINTON,

Defendant.

DEFENDANT HILLARY RODHAM CLINTONS REPLY

IN SUPPORT OF 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 19 Filed 09/29/16 Page 2 of 13

TABLE OF CONTENTS
Page
INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................1
I.

Plaintiffs Had Not Properly Served Secretary Clinton When They Moved for
Entry of Default. ..................................................................................................................1

II.

Secretary Clinton Is Not in Default Because This Case Arises from Her Official
Duties. ..................................................................................................................................3

III.

A.

Plaintiffs Are Suing Secretary Clinton for Alleged Acts Occurring in

Connection with the Performance of Official Duties. .............................................4

B.

Plaintiffs Did Not Properly Serve the United States. ...............................................6

C.

Secretary Clinton Has 60 Days To Respond to the Complaint. ...............................7

If This Court Concludes That Secretary Clinton Is in Default, the Default Should
Be Excused...........................................................................................................................8

CONCLUSION ................................................................................................................................9

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INTRODUCTION
Plaintiffs Opposition to Secretary Clintons Motion to Vacate Default confirms that default was improperly entered in this case. First, Plaintiffs concede that they attempted to serve
Secretary Clinton under section 308(2) of the N.Y. C.P.L.R., but they admittedly failed to comply
with an essential element of service under that statute. Second, Plaintiffs do not persuasively dispute that they are suing Secretary Clinton for alleged acts occurring in the performance of her
duties as Secretary of State. As a result, Plaintiffs were required to serve the United States in
compliance with Rule 4(i)(1). The affidavit and exhibit attached to their Opposition demonstrate
that they did not comply with that Rule. Moreover, even if service had been proper, Secretary
Clinton has 60 daysnot 21 daysto respond to the complaint, in appropriate consultation with
the State Department and/or the Department of Justice. For these reasons, Secretary Clinton is not
in default. Even if she were, this case readily satisfies the three-part test for excusing default.
Secretary Clinton respectfully requests that this Court vacate the erroneous entry of default.
ARGUMENT
I.

Plaintiffs Had Not Properly Served Secretary Clinton When They Moved for Entry
of Default.
Plaintiffs concede that their chosen method of serving Secretary Clinton did not satisfy

Rule 4(e)(2) of the Federal Rules of Civil Procedure or District of Columbia law. Instead, Plaintiffs claim to have followed the method of service set forth in section 308(2) of the N.Y. C.P.L.R.
by leaving a copy of the complaint and summons with an unidentified security guard at the building
where Secretary Clinton has her campaign office and then mailing copies to Secretary Clinton at
that office.1 As Secretary Clintons motion explains, section 308(2) requires a plaintiff to file

Although Plaintiffs call the unidentified security guard an employee, Oppn [Dkt. #16] at 3,
the affidavit of Plaintiffs process server provides no basis to conclude that the security guard who
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proof of service with the court and provides that service is not deemed complete until ten days
after the plaintiff has complied with that requirement. See Mot. [Dkt. #14] at 711. Plaintiffs did
not file the required proof of service before moving for entry of default, and they therefore failed
to follow[] state law for serving a summons in an action brought in courts of general jurisdiction
in the state . . . where service is made. Fed. R. Civ. P. 4(e)(1).
Plaintiffs respond that the Second Circuit has held that the requirement to file proof of
service under section 308(2) does not apply when a plaintiff invokes section 308(2) to accomplish
service in federal court. See Oppn [Dkt. #16] at 4 (citing Beller & Keller v. Tyler, 120 F.3d 21
(2d Cir. 1997). Secretary Clintons motion explains why the Second Circuits decisionwhich is
not binding on this Courtmisconstrued both the Federal Rules and section 308. See Mot. at 9
11. Plaintiffs are unable to defend the Second Circuits reasoning. Their principal response is to
assert that, under the Federal Rules of Civil Procedure, receipt of summons is the same as service. Oppn at 5. But they provide absolutely no authority for that proposition. Plaintiffs also
argue that [a]pplying each states different rules regarding timing to file an answer undermines
the Federal Rules. Id. As Secretary Clintons motion sets forth, section 308(2) does not prescribe
the time for filing an answer but instead defines when the obligation to answer arises by reason of
effective service. See Mot. at 10. Plaintiffs Opposition provides no basis to apply Beller.
This case illustrates the reasons why Rule 4(e)(1) must be read to require strict compliance
with state-law methods for accomplishing service on individuals. Secretary Clinton and her counsel were unaware that a process server had left a copy of the summons and complaint with a secu-

accepted the summons and complaint is an employee of Secretary Clintons campaign. The building where Secretary Clintons campaign office is located has multiple tenants, and the security
guards who guard the buildings entrance are not employees of Secretary Clintons campaign.
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rity guard until Plaintiffs moved for default in this case. Plaintiffs statement that Secretary Clinton . . . knew that a process server was present, but still willfully and improperly attempted to
prevent service is untrue. Oppn at 34; see also id. at 7. The affidavit of Plaintiffs process
server says nothing about Secretary Clinton herself refusing service. See Dkt. #7, Ex. 2. In fact,
Secretary Clinton was in Michigan on the morning of August 11, 2016, when the process server
claims to have left a copy of the complaint and summons with a security guard. She was not even
present to refuse service of process.2 Had Plaintiffs followed the method prescribed under section
308(2) to accomplish service and filed proof of service with the court, Secretary Clinton and her
counsel would have learned about the attempted service of process before the entry of default. The
requirement to file proof of service is an integral step of effectuating service under section 308(2)
and safeguards the rights of defendants who are served under that section.
For the reasons set forth in Secretary Clintons motion, this Court should hold that Plaintiffs had not properly served Secretary Clinton under section 308(2) at the time they moved for
entry of default, and it should vacate the entry of default.
II.

Secretary Clinton Is Not in Default Because This Case Arises from Her Official Duties.
The default should be vacated for two additional reasons. When a plaintiff sues a defendant

in an individual capacity for an act or omission occurring in connection with duties performed on
the United States behalf, the plaintiff must serve the United States and the defendant has 60 days
to respond to the complaint. See Fed R. Civ. P. 4(i)(3), 12(a)(3). This is unquestionably such a
case. Plaintiffs have not demonstrated that they properly served the United States, and, even if
they did, the 60-day period for responding to the complaint has not yet elapsed.

Nor was Secretary Clinton present in Washington, DC when service was purportedly attempted
at her residence on August 10, 2016. She spent August 10 in New York, Iowa, and Michigan.
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A.

Plaintiffs Are Suing Secretary Clinton for Alleged Acts Occurring in Connection with the Performance of Official Duties.

Most of Plaintiffs claims depend on their allegation that Secretary Clinton, while acting
as Secretary of State, sent or received e-mails about (1) the location of Ambassador Christopher
Stevens and (2) Department of State activities and covert operations. Compl. at 12. There can
be no genuine doubt that a lawsuit against the Secretary of State for communications about Department of State activities is a lawsuit over an act or omission occurring in connection with
the Secretarys official duties. Fed. R. Civ. P. 4(i)(3), 12(a)(3).
Although Plaintiffs acknowledged the need to serve the United States when they requested
the issuance of summons to the U.S. Attorney and the Attorney General, they now argue that Rule
12(a)(3) does not apply. For starters, they claim that Rule 12(a)(3) only applies to lawsuits against
current officers or employees of the United States government. That is simply not the law. Rule
12(a)(3) applies in actions against a former officer or employee of the United States in the same
way as an action against a present officer or employee. Fed. R. Civ. P. 12 advisory committees
notes to 2000 amendment; see also Fed. R. Civ. P. 4 advisory committee notes to 2000 amendment;
Kurzberg v. Ashcroft, No. 04 CV 3950 (JG), 2006 WL 2738991, at *4 n.2 (E.D.N.Y. Sept. 25,
2006) (holding that then-Rule 4(i)(2)(B) (which is now Rule 4(i)(3)) applies to former government
officials), affd, 619 F.3d 176 (2d Cir. 2010). Rule 12(a)(3)s 60-day deadline and the related
requirement in Rule 4(i)(3) to serve the United States therefore apply in this case in the same
way they would if Secretary Clinton were still in office.
Plaintiffs also claim that this case does not satisfy the in connection with standard because Plaintiffs defamation claim is based in part on alleged statements made by Defendant Clinton after she had left the State Department. Oppn at 6. While Secretary Clinton disputes that
point, there is no reason for the Court to address it here. Rules 4(i)(3) and 12(a)(3) apply when a
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defendant is sued for an act or omission occurring in connection with duties performed on the
United States behalf. Fed. R. Civ. P. 4(i)(3), 12(a)(3) (emphasis added). Plaintiffs have without
doubt sued Secretary Clinton for an act that occurred in connection with her official duties
namely, her alleged communications about Ambassador Stevens and State Department activities
in Libya while serving as Secretary of State. That is sufficient to trigger the requirement to serve
the United States under Rule 4(i)(3) and the 60-day deadline under Rule 12(a)(3).
Finally, Plaintiffs argue that Secretary Clintons alleged e-mails concerning Ambassador
Stevens were not within the scope of her employment because she allegedly violated criminal
statutes when sending them.3 Oppn at 6. The D.C. Circuit has frequently rejected this sort of
argument, pointing out that it rests on a misunderstanding of D.C. scope-of-employment law.
Wilson v. Libby, 535 F.3d 697, 711 (D.C. Cir. 2008) (quoting Council on Am. Islamic Relations v.
Ballenger, 444 F.3d 659, 664 (D.C. Cir. 2006)). Under D.C. scope-of-employment law, the issue
is not, as Plaintiffs suggest, whether the defendants actions were unlawful or contrary to the
national security of the United States but, rather, whether the defendants underlying conduct
was within the scope of her official duties. Id. at 71112; see also Jacobs v. Vrobel, 724 F.3d 217,
221 (D.C. Cir. 2013) (District law requires that we focus on the type of act [defendant] took that
allegedly gave rise to the tort, not the wrongful character of that act.). For this reason, courts in
this Circuit have repeatedly recognized that, even if a plaintiff alleges that a defendant committed
seriously criminal and violent conduct, the defendants actions can still fall within the scope of

Plaintiffs cite two cases on this issue but neither is relevant to the scope-of-employment issue
before the Court. The first case concerns the scope of the discretionary function exception to
the waiver of sovereign immunity in the Federal Tort Claims Act. See Loumiet v. United States,
968 F. Supp. 2d 142, 158 (D.D.C. 2013). The second case is about the scope of immunity available to the senior aides and advisers of the President of the United States in a suit for damages
based upon their official acts. Harlow v. Fitzgerald, 457 U.S. 800, 802 (1982). Because Secretary
Clinton has not yet raised any immunity defenses, these cases are irrelevant at this stage.
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a defendants employment under D.C. law.4 Harbury v. Hayden, 522 F.3d 413, 422 (D.C. Cir.
2008); see also Schneider v. Kissinger, 310 F. Supp. 2d 251, 26566 (D.D.C. 2004) (rejecting
argument that National Security Advisor was acting outside the scope of his employment because
he was alleged to have violated peremptory norms of international law), affd on other grounds,
412 F.3d 190 (D.C. Cir. 2005). Here, the underlying conduct at issuealleged communications
about Ambassador Stevens and other State Department activitieswas clearly within Secretary
Clintons scope of employment. Plaintiffs allegation that the manner of these communications
violated criminal statutesan allegation that cannot be squared with the findings of the recent
FBI investigationhas no effect on that conclusion.
B.

Plaintiffs Did Not Properly Serve the United States.

Because Plaintiffs are suing Secretary Clinton for alleged acts occurring in connection
with duties performed on the United States behalf, they were required to serve the United States.
Fed. R. Civ. P. 4(i)(3). To serve the United States, Plaintiffs had to (a) hand deliver copies of the
complaint and summons to the U.S. Attorneys Office for the District of Columbia or send copies
by registered or certified mail to the civil-process clerk at the United States attorneys office,
and (b) send copies by registered or certified mail to the U.S. Attorney General. Fed. R. Civ. P.
4(i)(1)(A)(B). To assure proper handling of mail in the United States attorneys office, the

The law on this point should be well known to Plaintiffs counsel. Mr. Klayman recently sued
President Obama and Secretary Clinton, among others, alleging that they conspired to finance
terrorism by HAMAS and its parent the Muslin Brotherhood. Klayman v. Obama, 125 F. Supp.
3d 67, 72 (D.D.C. 2015) (quotation marks omitted). The court rejected Klaymans suit on numerous grounds, but, as relevant here, it held that, even if Secretary Clinton and President Obama
illegal[ly] or unconstitutional[ly] supported foreign terrorism, they still acted within the scope
of their employment. Id. at 83, 85. As is required by D.C. law, the court focused on the type of
act[s] at issue and not their allegedly wrongful character. Id. at 83 (quotation marks omitted).
Because Klaymans allegations concerned foreign policy and foreign relations on behalf of the
United States, the court held that both the President and Secretary Clinton acted within the scope
of their dutieseven if their actions were allegedly illegal or unconstitutional. Id. at 84.
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authorized mail service must be specifically addressed to the civil process clerk of the office of the
United States attorney. Fed. R. Civ. P. 4 advisory committees notes to 1993 amendment. The
requirement to address mail service to the civil process clerk is mandatory, and failure to comply
with the requirement renders service deficient. Guthery v. United States, 507 F. Supp. 2d 111,
115 (D.D.C. 2007); see also Rushing v. Leavitt, No. CIV.A.03-1969(CKK), 2005 WL 555415, at
*12 (D.D.C. Mar. 7, 2005) (finding service of process defective on the same ground).
Plaintiffs did not comply with the requirement to address mail service to the civil process
clerk of the U.S. Attorneys Office. See Oppn, Ex. A. Plaintiffs attempt to serve the United
States was thus deficient. Guthery, 507 F. Supp. 2d 111. For this reason, Secretary Clintons
time to respond to the complaint has not yet begun to run.
C.

Secretary Clinton Has 60 Days To Respond to the Complaint.

Finally, even if Plaintiffs had properly served Secretary Clinton and the United States, Secretary Clinton has 60 days to respond to the complaint, as measured from the later of service on
Secretary Clinton or the United States. See Fed. R. Civ. P. 12(a)(3). Secretary Clinton thus is not
in default, and the motion to vacate default should be granted. See Mot. at 13.
It bears reminder that Rule 12(a)(3) exists for a reason. In cases where a former federal
officer is sued for actions occurring in the performance of official duties, [t]ime is needed for the
United States to determine whether to provide representation to the defendant officer. Fed. R.
Civ. P. 12 advisory committees notes to 2000 amendment. Secretary Clinton understands that the
State Department and/or Department of Justice are currently making that very determination in
this case.

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III.

If This Court Concludes That Secretary Clinton Is in Default, the Default Should Be
Excused.
Even if this Court concludes that Secretary Clinton is technically in default (she is not), the

circumstances of this case readily satisfy the three-part test for excusing default. See Mot. at 5.
First, any default was not willful. As already explained, Secretary Clinton and her counsel
were unaware that a process server had left a copy of the complaint and summons with a security
guard at the building where her campaign office is located. See supra pp. 23. In addition, Secretary Clinton and her counsel continue to believe in good faith that she has 60 days after proper
service to respond to the complaint and summons under Rule 12(a)(3), and they have requested
that the Federal Government provide representation in this matter. See supra p.7.
Second, Plaintiffs do not identify any concrete prejudice that would result from a minor
delay. They merely state that they would like to recover expeditiously for their damages. Oppn
at 7. That is not sufficient reason to override the strong policies favoring the resolution of genuine
disputes on their merits. Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980).
Finally, Secretary Clinton has a legitimate defense to Plaintiffs claims. This final prong
of the three-part test is satisfied so long as a defendant provides even a hint of a suggestion of a
meritorious defense. Keegel v. Key W. & Caribbean Trading Co., 627 F.2d 372, 374 (D.C. Cir.
1980) (quotation marks omitted). That standard is easily surpassed here: as Secretary Clinton has
already explained, Plaintiffs claims are facially implausible, completely speculative, and flatly
contradicted by the findings of the recent FBI investigation. See Mot. at 14. Tellingly, Plaintiffs
offer no substantive defense of the merits of their claims or of the reasonableness of Mr. Klaymans
pre-filing investigation in their Opposition. They instead chide Secretary Clinton for requesting
this Courts permission to waive the requirement in Local Rule 7(g) to attach a verified answer
presenting a defense sufficient to bar the claim in whole or in part. This Court, however, has
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frequently waived that requirementincluding in circumstances where, as here, service of process

is not yet perfected and the defendant thus is not in default. See Baade v. Price, 175 F.R.D. 403,
406 (D.D.C. 1997); see also Acree v. Republic of Iraq, 658 F. Supp. 2d 124, 128 (D.D.C. 2009)
(exercising the courts discretion to waive compliance with the Local Rule); Harris v. District of
Columbia, 159 F.R.D. 315, 317 (D.D.C. 1995) (same); cf. Flanagan v. Islamic Republic of Iran,
No. 10-1643, 2016 WL 3149560, at *4 n.4 (D.D.C. June 3, 2016) (stating that courts in this district have questioned how this rule operates when a party seeks to vacate an entry of default on
jurisdictional grounds).5 This Court has also noted, in ruling on a motion to vacate default, that
a defendant is entitled to respond to a complaint by moving to dismiss it, rather than by filing an
answer. See Owens v. Republic of Sudan, 374 F. Supp. 1, 9 (D.D.C. 2005). Secretary Clinton
anticipates that, in appropriate consultation with the State Department and/or Department of Justice, she will move to dismiss Plaintiffs complaint at the required time.
CONCLUSION
Secretary Clinton respectfully requests that this Court vacate the erroneous entry of default
pursuant to Federal Rule of Civil Procedure 55(c).

Plaintiffs argue that Baade is not applicable because the defendant in Baade moved to quash
service of process in addition to moving to vacate default. The critical fact in Baade, however,
was that service was improper (and the defendant thus was not in default)not that the defendant
had moved to quash service of process.
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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 29, 2016

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CERTIFICATE OF SERVICE
I, David E. Kendall, counsel for Defendant Hillary Rodham Clinton, certify that, on September 29, 2016, a copy of this Reply in Support of Motion to Vacate Entry of Default was filed
via the Courts electronic filing system, and served via that system upon all parties required to be
served.
/s/ David E. Kendall
David E. Kendall