United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
plaintiff has filed a second application to the Clerk for
entry of default. (Doc. 13). “When a party against whom
a judgment for affirmative relief is sought has failed to
plead or otherwise defend, ” it is subject to entry of
default. Fed.R.Civ.P. 55(a). But a defendant is under no
obligation to plead or otherwise defend until and unless it
is “served with the summons and complaint.”
Id. Rule 12(a)(1)(A)(i); accord Securities and
Exchange Commission v. Wright, 261 Fed.Appx. 259, 261
(11th Cir. 2008). Thus, “[b]efore a default
can be entered, … the party must have been effectively
served with process.” 10 Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure
§ 2682 at 14 (3rd ed. 1998). And when service
of process is at issue, “it [i]s proper for the court
rather than the clerk to consider [the plaintiff's]
request” for entry of default. Sandoval v.
Bluegrass Regional Mental Health - Mental Retardation
Board, 2000 WL 1257040 at *5 (6th Cir. 2000).
sole defendant is Southern Recyclers Disaster Relief, LLC
(“Southern”). The complaint alleges that Thad
Sellers (“Thad”) is the sole member of Southern.
(Doc. 1 at 1). This is confirmed by the Alabama Secretary of
State website (relied on by the plaintiff). The plaintiff
also states that Thad is Southern's registered agent for
service of process, (Doc. 13-1 at 1), which the website also
plaintiff first attempted service by serving process on
“Kevin Sellers, on behalf of Thad Sellers, Registered
Agent of Southern Recyclers Disaster Relief, LLC.”
(Doc. 6 at 2). The Court rejected the plaintiff's ensuing
application for entry of default because the plaintiff failed
to show that Kevin was an officer, managing agent or general
agent of Southern or that he had been authorized by
appointment or by law to receive service of process on behalf
of Southern. (Doc. 8). The plaintiff asserted that service
was good because Kevin was served “on behalf of”
Thad (the registered agent), but the Court rejected this
argument because it was unsupported by any explanation,
analysis or citation to relevant authority showing either
that Kevin legally could, or factually did, accept service on
behalf of the registered agent.
response to this setback, the plaintiff procured alias
summons directed to Southern. (Doc. 10). A process server
personally served the complaint and summons on Cody Sellers,
Sr. (“Cody”) at an address other than
Southern's business address. The process server
identified Cody as a person “designated by law to
accept service of process on behalf of” Southern. (Doc.
addition, the plaintiff sent process by certified mail to
Southern at its business address. (Doc. 12). This mailing was
signed for by Cody. (Id. at 6).
these returns of service in hand, the plaintiff again seeks
entry of default. The plaintiff offers the affidavit of
counsel for the propositions that Thad died on July 17 of
this year (after the first attempted service) and that Cody
“is the only other agent/officer/owner/member” of
Southern known to the plaintiff. (Doc. 13-1 at 1). The
plaintiff also offers the declaration of its project manager
who, from his dealings with Southern, is aware of only two
owners and/or officers of Southern - Thad and Cody. (Doc.
13-2 at 1). Thad told the declarant that Thad's siblings
were not involved in Southern. (Id. at 1-2).
noted in the Court's previous order, service under either
state or federal law requires service on an officer, a
managing agent, a general agent, or some other agent
authorized by appointment or by law to receive service.
Fed.R.Civ.P. 4(h)(1)(B); Ala. R. Civ. P. 4(c)(6). The
declarant's only information regarding Cody, received
from Thad, is that he is an “owner” of Southern.
This assertion contradicts both the Secretary of State's
website and the plaintiff's own complaint, which alleges
that Thad is the only member (and thus owner) of Southern.
Upon Thad's death, his interest presumably passed to his
estate; while it may ultimately devolve to Cody or some other
heir, the plaintiff has not shown that this has yet occurred
or to whom Thad's interest descends. Nor has the
plaintiff shown that proper service may be based simply on
the recipient's ownership interest in the entity; neither
the state nor the federal rule provides for service on an
owner qua owner.
declarant states that Cody is an owner “and/or”
officer of Southern, (Doc. 13-2 at 1), but he identifies no
source of information that Cody is in fact an officer.
Counsel offers nothing from personal knowledge but only
repeats what his client has told him. (Doc. 13-1 at 1). Nor
does the plaintiff explain why a single-member LLC is likely
to have officers. It appears that the plaintiff merely
assumes that if Cody has an ownership interest (something it
has not established), he may also hold an officer position.
plaintiff also appears to assume that somebody must be in a
position to accept service of process and that Cody must
therefore be that person. The primary flaw in this argument
is that it rests on ignorance: because the plaintiff does not
know who else may be involved in Southern, Cody must be the
proper recipient of process. The declarant concedes that Cody
is simply the only owner he is “aware of” and
that Cody and a bookkeeper are the only employees he
“know[s] of.” (Doc. 13-1 at 1-2). Even the
declarant's understanding, received from Thad, that
Thad's siblings were not involved with Southern is
subject to question, since the plaintiff has represented to
the Court that Kevin was capable of receiving service
“on behalf of” Thad as Southern's registered
in his affidavit suggests that Cody must be a proper
recipient because the certified letter, for which Cody
signed, is addressed to the attention of to “Any
Officer, Manager or General Agent” of Southern. (Doc.
13-1 at 1-2). The letter, of course, was inside the mailing,
not outside, so Cody could hardly identify himself as an
officer, managing agent or general agent by signing for a
mailing addressed simply to “Southern Recyclers
Disaster Relief, LLC.” (Doc. 12 at 6).
Court is not unsympathetic to the difficulty the unusual
circumstances presented here place on the plaintiff in
effecting good service. The Court cannot, however, on that
account relieve the plaintiff of its responsibility of making
such service, and of demonstrating the validity of its
service, prior to entry of default against Southern.
reasons set forth above, the plaintiff's application for
entry of default, construed as a ...