United States District Court, E.D. Michigan, Southern Division
LINDA D. MALLOY, Plaintiff,
WATCHTOWER BIBLE AND TRACT SOCIETY, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO
PLAINTIFF'S MOTION AND AMENDED MOTIONS FOR DEFAULT
JUDGMENT [DKT. NO. 18 AND 19]
DENISE PAGE HOOD, JUDGE
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.
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.
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.
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).
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).
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).
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).
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 ...