determining that the defendants waived formal business of process after lock filed a movement to i disbanded for failure to state a claim upon i beg your pardon relief deserve to be granted — similar to a an introduction judgment activity — while likewise maintaining that they had not been effectively served with process

Summary the this situation from Morgan v. Prince George"s County

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Civil action No. 3:10CV00006.

April 16, 2010


glen CONRAD, ar Judge

This case is presently before the court ~ above the plaintiff"s motion for entry of default and the defendant"s motion to dismiss and/or different suggestion the bankruptcy. Because that the reasons that follow, the plaintiff"s motion will it is in denied and also she will be command to paper a an answer to the defendant"s motion within fourteen days.


Ann Karima Gallant, proceeding pro se, filed this activity against the defendant, Deutsche financial institution National to trust Company, ~ above February 9, 2010. According to the plaintiff"s pleadings and also exhibits, the defendant initiated foreclosure proceedings against the plaintiff"s house in march of 2008, and a trustee"s revenue was hosted on April 15, 2008. The plaintiff has since refused come vacate the property, prompting the defendant come initiate unlawful detainer and/or evictions proceedings versus the plaintiff in the basic District Court for the City that Charlottesville. In the present action, the plaintiff challenges the propriety that the foreclosure proceedings, and also claims the the defendant violated state and federal law.

on the same day that the plaintiff"s complaint was filed, a summons to be issued in ~ the plaintiff"s request. The summons noted the adhering to name and deal with for the defendant: Josef Ackermann Deutsche financial institution National Trust firm c/o E. Edward Farnsworth, et al the c/o Shapiro Burson, LLP 236 Clearfield avenue Suite 215 Virginia Beach, VA 23462

(Docket No. 9).

on February 12, 2010, the plaintiff returned an executed summons to the court, in addition to a proof of company form. The type indicated that the summons and complaint to be personally served on attorney Fulton Patrick in ~ the general District Court because that the City of Charlottesville top top February 9, 2010.

On march 12, 2010, the plaintiff filed a motion for entry of default pursuant to preeminence 55(a) of the commonwealth Rules of polite Procedure. In one accompanying affidavit, the plaintiff averred that the summons and also complaint were "served" top top the defendant "by and through counsel, Fulton Patrick, the Shapiro Burson, LLP." (Docket No. 16). In a subsequent letter addressed to the clerk of Court, the plaintiff check that business was appropriately effected top top the defendant, since "oth Fulton J. Patrick and also E. Edward Farnsworth . . . Room Attorneys and also are or were representing Deutsche financial institution National Trust firm in two unlawful detainer instances in the Charlottesville City basic District Court." (Docket No. 22).

On march 25, 2010, the defendant filed a activity to i have dissolved and/or alternate suggestion the bankruptcy. When the defendant maintains that it has actually not yet been correctly served v process, the defendant nonetheless says that the complaint must be dismissed for fail to state a insurance claim upon i m sorry relief might be granted.

In response to the defendant"s motion and also a subsequentRoseboro notice, the plaintiff filed a pleading in i m sorry she seeks review of her activity for entrance of default. The plaintiff likewise argues the the Clerk plot improperly by failing to instantly enter default versus the defendant.

Plaintiff filed a pleading charging the salesperson of Court through "18 U.S.C. Thing 73 — Obstruction of justice — § 1506," and also a petition seeking the court to review the pleading. For the reasons stated herein, plaintiff"s petition is dismissed, and the relief seek in the pleading is denied. In any kind of event, the court notes the requests because that the initiation the criminal procedure should be directed to the United says Attorney"s Office.


I. Plaintiff"s activity for entrance of Default

prior to obtaining a default referee under rule 55(b) the the commonwealth Rules of civil Procedure, there have to be an entry of default under preeminence 55(a). Dominance 55(a) provides that the salesperson must enter a party"s default, once the party "has failed to plead or otherwise defend, and that fail is shown by affidavit or otherwise." Fed.R. 55(a). While no action by the court is forced under preeminence 55(a), "the court also has the capacity to enter a default, or come order the salesperson to go into the default on the docket." 10 R. Bloom, Moore"s Federal practice § 55.12 (3d ed. 2010); see additionally 10A C. Wright, A. Miller, M. Kane, federal Practice and also Procedure § 2682 (3d ed. 2010) ("The fact that preeminence 55(a) provides the clerk authority to go into a default is no a limitation on the power of the court to carry out so.").

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In this case, the plaintiff"s motion for entry of default was at first reviewed through the Clerk"s Office. The Clerk"s Office carried the activity to the court"s fist and noted that it appeared from the record that the defendant to be not properly served v process. ~ above reviewing the plaintiff"s motion, the court advised the Clerk"s Office that the court would rule on the matter. Come the extent the plaintiff now suggests that the clerk erred by not instantly granting the motion, the plaintiff"s debate is there is no merit.

before a default can be gone into under dominance 55(a), "the court must have actually jurisdiction end the party against whom the referee is sought, i m sorry also method that the party must have actually been successfully served v process." federal Practice and also Procedure,supra; see likewise Maryland State Firemen"s Ass"n v. Chaves, 166 F.R.D. 353, 354 (D. Md. 1996) ("It is axiomatic that organization of process must be effective under the commonwealth Rules of polite Procedure before a default or a default judgment may be entered against a defendant."). Once it shows up from the record that a defendant has not to be adequately served, "neither entry of default no one entry the default judgment would be proper." Dahl v. Kanawha Inv. Stop Co., 161 F.R.D. 673, 685 (N.D. Iowa 1995).

The permissible approaches for offer a coporation, group are collection forth in preeminence 4(h) the the commonwealth Rules of polite Procedure. Dominion 4(h)(1) provides that company may be achieved "in the way prescribed by dominion 4(e)(1) for serving an individual; or by carrying a copy the the summons and of the complaint to an officer, a regulating or basic agent, or any other agent authorized by appointment or by legislation to receive service of process. . . ." Fed.R.Civ.P. 4(h)(1). Under dominion 4(e)(1), service may it is in effected pursuant come "state law for offer a summons in an action brought in court of general jurisdiction in the state whereby the district court is located or where company is made." Fed.R.Civ.P. 4(e)(1). In Virginia, procedure may be served upon a residential corporation one of two people by "personal organization on any kind of officer, director, or registered agent of such corporation," or by substituted service on the salesman of the State corporation Commission. Watch Va. Code § 8.01-299.

In light of the foregoing requirements, the is abundantly clean from the record that the defendant has actually not been correctly served in this instance and, thus, that the plaintiff is not entitled to an entry of default under preeminence 55(a). As formerly stated, the plaintiff served copies of the summons and the complaint on Fulton Patrick, an attorney who stood for the defendant in the unlawful detainer proceedings pending in general District Court. When the plaintiff contends that Patrick"s duty as defense counsel in the state court proceedings establishes that that is the defendant"s registered certified dealer for objectives of company of process, the plaintiff"s dispute is without merit. Together this court previously explained inRoden v. Diah, 2008 U.S. Dist. LEXIS 102828 (W.D. Va. Dec. 19, 2008), "the attorney-client relationship, standing alone, walk not create that an lawyer is an certified dealer authorized come accept business on instead of of his client." Roden, 2008 U.S. Dist. LEXIS 102828, at *19. "Indeed, even where an lawyer has large power to stand for a client, `these strength of representation alone perform not produce a particular authority to receive service."" Davies v. Jobs Adverts Online, 94 F. Supp. 2d 719, 722 (E.D. Va. 2000) (quoting United claims v. Ziegler Bolt and also Parts Co., 111 F.3d 878, 881 (Fed. Cir. 1997)). In the lack of any type of evidence that the defendant authorized Patrick come accept service in the instant action or that Patrick ever represented come anyone that he had such authority, the court concludes that organization of the summons and also complaint top top Patrick was poor to effect service on the defendant. Since the defendant has actually not been appropriately served with process, the plaintiff"s movement for entrance of default must be denied. See Compton v. Lowe"s Companies, Inc., 2009 U.S. Dist. LEXIS 108156, at *3-4 (S. D. Ill. Nov. 19, 2009) (denying the plaintiff"s activity for default referee on the communication that company had no been properly effectuated, whereby the plaintiff just served the defendant"s attorney).

II. Defendant"s motion to dismiss and/or alternative Suggestion of Bankruptcy

succeeding to the filing of the plaintiff"s inquiry for entry of default, the defendant filed a motion to i have dissolved and/or different suggestion of bankruptcy. Although the defendant maintains that it has actually not been correctly served v process, the defendant nonetheless argues that the plaintiff"s complaint fails to state a insurance claim upon i beg your pardon relief may by granted. By selecting to deal with the merits of the plaintiff"s claims and also appearing voluntarily for that purpose, the defendant has actually made a basic appearance. Together a result, the court concludes the the defendant has actually waived formal organization of procedure in this case, and also that the instance must be chose on the merits. Roden v. Diah, 2008 U.S. Dist. LEXIS 102828, in ~ *22; see also United claims v. Martin, 356 F. Supp. 2d 621, 624 (W.D. Va. 2005) (holding the the defendant waived his appropriate to organization of process by responding to the merits that the plaintiff"s claim). Accordingly, the plaintiff will be directed to document a an answer to the defendant"s activity within fourteen work of the day of entrance of this order.

The salesperson is command to send certified copies of this order and the accompanying memorandum opinion to the plaintiff and also all counsel the record.