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Malloy v. Watchtower Bible And Tract Society

United States District Court, E.D. Michigan, Southern Division

August 30, 2017

LINDA D. MALLOY, Plaintiff,




         Pro se Plaintiff filed this cause of action on February 28, 2017. On May 2, 2017, Plaintiff filed an Amended Complaint. On May 26, 2017, the Clerk of the Court filed a Clerk's Entry of Default against Defendant for failing to plead or otherwise defend this cause of action - with respect to the original Complaint. Dkt. No. 12. On the same day, the Clerk of the Court denied Plaintiff's request for entry of default judgment because there was no sum certain requested. Dkt. No. 13. On June 26 and 28, 2017, Plaintiff filed a Motion for Default Judgment and an Amended Motion for Default Judgment, respectively. Dkt. Nos. 17 and 18.

         On August 1, 2017, Defendant filed a Motion to Set Aside Default Judgment (the “Motion to Set Aside”). Dkt. No. 21. The Motion to Set Aside has been fully briefed. On August 30, 2017, the Court held a hearing on the Motion to Set Aside and the Motion for Default Judgment. For the reasons that follow, the Court grants the Motion to Set Aside and denies as moot the Motion for Default Judgment.


         The Motion to Set Aside turns on whether Defendant was properly served. Defendant is a religious corporation, organized and existing under the laws of the State of New York.

         III. ANALYSIS

         A. Legal Standard

         Pursuant to Federal Rules of Civil Procedure 55(c), an entry of default may be set aside only upon the showing of: (1) mistake, inadvertence, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation or other misconduct of the adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any other reason justifying relief from judgment. See also Burrell v. Henderson, 434 F.3d 826 (6th Cir. 2006); United Coin Meter Co. v. Seaboard Coastline R.R., 705 F.2d 839 (6th Cir. 1983).

         As set forth in United Coin, the Court also must determine that good cause exists for setting aside default judgment by assessing whether: (a) the plaintiff will be prejudiced; (c) the defendant has a meritorious defense; and (c) culpable conduct of the defendant led to the default. Id. at 845; Shepard Claims Serv., Inc. v. William Darrah & Assocs., 796 F.2d 190, 194 (6th Cir. 1986). As the entry of default is a harsh sanction, “[a]ny doubt should be resolved in favor of the petition to set aside the judgment so that cases may be decided on their merits. United Coin, 705 F.2d at 846; Shepard, 796 F.2d 193 (there is a strong preference for deciding cases on the merit rather than by default).

         B. Analysis

         “Without proper service of process, the district court is without jurisdiction to make an entry of default against a defendant.” Sandoval v. Bluegrass Regional Mental Health-Mental Retardation Board, 229 F.3d 1153, No. 99-5018, 2000WL 1257040, at *5 (6th Cir. 2000) (TABLE) (citing 10 A. Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2682); King v. Taylor, 694 F.3d 650, 655 (6th Cir. 2012) (explaining that “without proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant[, ]” and “in the absence of personal jurisdiction, a federal court is powerless to proceed to an adjudication.” (internal quotation marks and citations omitted)); Etherly v. Rehabitat Systems of Mich., No. 13-11360, 2013 WL 3946079 (E.D. Mich. July 31, 2013) (“if service of process was not proper, the court must set aside an entry of default.”). A named defendant “becomes a party officially, and is required to take action in that capacity, only upon [proper] service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S 344, 350 (1999).

         The default should be set aside. First, only a non-party making personal service can supply the court with a valid affidavit constituting proof of service. Rule 4(1). Plaintiff, as a party to this cause of action, was not authorized to serve a summons and Complaint. FRCP 4(c)(2).

         Second, Plaintiff failed to properly serve the summons and Complaint on Defendant (a corporation) pursuant to Rule 4(h), which requires personal service on “an officer, a managing agent or general agent, or another agent authorized by appointment or by law to receive service of process.” The rule does not provide for service of process upon corporations by mail. O.J. Distributing, Inc. v. Hornel Brewing Co., Inc., 340 F.2d 345, 354-55 (6th Cir. 2003) (having a receptionist sign for an overnight package is not sufficient under Rules 4(b) and (h); Larsen v. Mayo Med. Or., 218 F.3d 863, 868 (8th Cir. 2000). Etherly v. Rehabitat Systems of Michigan, No. 13-11360, 2013 WL 3946079 (E.D. Mich. 2013) (improper service where “someone at Rehabitat acknowledged receipt” of a certified mail package because “Rule 4(h)(1) does not authorize service ...

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