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Fletcher v. Wilson

United States District Court, N.D. Alabama, Southern Division

September 20, 2017

MAJOR GENERAL PAUL FLETCHER, et al., Plaintiffs,
v.
ROBERT PARK WILSON, et al. Defendants.

          MEMORANDUM OPINION

          R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE

         This case is before the court on Defendant Robert Park Wilson's Motion for Relief From Final Judgment Pursuant to Fed.R.Civ.P. 60(b)(4) and Motion to Quash Service by Publication. (Doc. # 100). The parties have fully briefed the motion. (See Docs. # 101, 102). Following a status conference, and pursuant to the court's order, the parties submitted a Joint Report discussing the undisputed facts, alongside their respective proposed findings of fact. (See Docs. # 112, 112-1, 112-2, & 112-3). The court held oral argument on the motion on September 6, 2017, and the parties have agreed that an evidentiary hearing is unnecessary. (Doc. # 112 at 4). After careful review of the motion and evidentiary submissions, and with the benefit of oral argument, the court concludes that Defendant's Motion for Relief From Final Judgment (Doc. # 100) is due to be granted.

         I. Background

         A. Procedural History of This Action

         In September 2008, Plaintiffs filed this suit in the Circuit Court of Jefferson County, Alabama. (See Doc. # 1-1 at 2-22). Plaintiffs identified Defendant Wilson as a real estate investor, a managing member of DPG Watts, LLC, and the secretary for Denali Investment Group, Inc. (Id. at 2). They alleged that Wilson conducted business in Alabama. (Id.). They asserted in the initial complaint that Wilson could be served at the offices of Denali Investment Group. (Id. at 22).

         After suit was filed, the Circuit Court's clerk stated in an affidavit that Wilson had refused to accept service on September 12, 2008. (Id. at 28). The clerk sent a copy of the summons and complaint to Wilson at Denali Investment Group's offices in Birmingham. (Id.). Accordingly, the clerk deemed Wilson to be served in September 2008. (Id.). In October 2008, Defendant Dan Pena removed this case to this court. (Doc. # 1).

         In February 2011, Plaintiffs moved for the court to enter default against Defendants Wilson, DPG Watts, and Denali Investment Group. (Doc. # 50). The Clerk of Court entered default against Wilson on February 28, 2011. (Doc. # 52). In March 2011, Plaintiffs then moved for default judgment against Wilson, DPG Watts, and Denali Investment Group. (Doc. # 53). On March 24, 2011, the Magistrate Judge (who was then presiding over this action) held a hearing on the default judgment motion. (Doc. # 57 at 1). During the hearing, he found that Plaintiffs had failed to properly serve DPG Watts. (Id.).

         Following the hearing, the Magistrate Judge reviewed the record and questioned the service effectuated on Defendants Wilson and Denali Investment Group. (Id.). He acknowledged the Circuit Court clerk's affidavit, but questioned whether Wilson could be served in his individual capacity at Denali Investment Group. (Id. at 1 n. 1). The Magistrate Judge ordered Plaintiffs within 20 days to either prove that they had completed service on Wilson or attempt service. (Id. at 1).

         In response, Plaintiffs moved to serve Wilson and three other Defendants by publication. (Doc. # 59 at 1). Plaintiffs claimed that service of Wilson had already been completed pursuant to Alabama Rule of Civil Procedure 4(e) by mailing the summons and complaint to his then-current address after he had refused service. (Id. at 4). They argued that this method of service complied Federal Rule of Civil Procedure 4(e)(1). (Id. at 4-5). They further explained that their attorney had attempted to send documents to Wilson at the “address provided on the Secretary of State of Alabama's website, ” but the documents were returned to sender because Wilson was not at the address and no forwarding address was available. (Id. at 5).

         Furthermore, Plaintiffs averred that, in April 2011, Plaintiffs' counsel conducted a search of public records on Lexis and sent a process server to the most recent address discovered in that search. (Id.). Plaintiffs' process server discovered a mailbox and a vacant lot at that address. (Id.). Based upon these events, Plaintiffs argued that Wilson both “refused to accept service and attempted to dodge service by providing multiple fictitious or erroneous addresses.” (Id.). They asked this court to either find that Wilson had been served in 2008 or grant them leave to serve him by publication. (Id. at 5-6). Among other exhibits, Plaintiffs filed an affidavit from their process server. (See Doc. # 59-4).

         On April 15, 2011, the Magistrate Judge denied Plaintiffs' initial motion for service by publication. (See Doc. # 60). With regard to Defendant Wilson, he found that the affidavit proffered by Plaintiffs failed to meet the requirements of Alabama Rule of Civil Procedure 4.3(d) because neither Plaintiffs nor their counsel issued the affidavit. (Id. at 2). Moreover, he found that Plaintiffs had failed to attempt service on Wilson properly in his individual capacity. (Id. at 2-3 n. 2). The Magistrate Judge directed Plaintiffs to attempt to serve Wilson properly in his individual capacity. (Id. at 3).

         On March 31, 2011, the court issued Plaintiffs a summons for Wilson. (See Doc. # 63). The summons stated that Wilson resided at 8610 Eastern Hills Drive, # D, Cottondale, Alabama 35453. (Id. at 1). Carl Robinson returned the summons unexecuted in April 2011 because no residence existed at the address listed on the summons. (Id. at 2; Doc. # 66).

         In May 2011, Plaintiffs again requested leave to serve Wilson by publication. (Doc. # 67). They incorporated by reference their earlier motion for leave to serve by publication. (Id. at 1). In support of this renewed motion, Plaintiffs' attorney filed a supporting affidavit, in which he described his attempts to serve Wilson via mail and process server in 2008 and 2011. (See Doc. # 67-1 at 5-6). Specifically, Plaintiffs' counsel discussed the refused service in September 2008, the Circuit Court's mailing to Wilson in September 2008, his attempts to send documents to Wilson, and the process server's attempt to serve Wilson in April 2011. (See id.). After describing the failed attempts to serve Wilson, Plaintiffs' counsel averred that Wilson had refused to accept service and attempted to dodge service. (Id. at 6). The attorney stated that Wilson's current address was unknown and could not be ascertained through reasonable diligence. (Id.). Plaintiffs' counsel never mentioned in his affidavit to the court that Wilson had relocated to Central America. (See generally Doc. # 67-1).

         The Magistrate Judge reviewed the affidavit from Plaintiffs' counsel and found that (1) four defendants, including Wilson, had avoided service and (2) those Defendants could not be located. (Doc. # 74 at 2). He recounted the standard for authorizing service by publication under Alabama law (id. at 1), and found that Plaintiffs had met their burden to justify service by publication. (Id. at 2). Thus, the Magistrate Judge granted Plaintiffs ...


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