United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
matter is before the Court on the plaintiff's motion for
permission to serve the defendant by publication, and on the
plaintiff's alternative motion to recognize Cody Sellers,
Sr. (“Cody”) as a managing or general agent of
the defendant. (Doc. 16).
factual and procedural background is unusual. The defendant
(“Southern”), a limited liability company, had a
sole member, Thad Sellers (“Thad”), who was also
Southern's registered agent. The complaint was filed July
6, 2018, and the plaintiff promptly attempted personal
service on Thad on July 13, 2018. Thad, who had been
diagnosed with cancer in May 2018, was unable to come to the
door (he would die four days later), so the process server
left process with Thad's son, Kevin Sellers
(“Kevin”), “on behalf of” Thad as
registered agent. The Court denied the plaintiff's
ensuing application for entry of default for failure to show
either that Kevin was Southern's officer, managing agent,
general agent, or agent authorized by appointment or by law
to accept service of process on behalf of Southern or that he
was either legally or factually authorized to accept service
on behalf of Thad as registered agent. (Doc. 8). The
plaintiff has made no attempt to supply law or evidence to
rectify this deficiency; on the contrary, the plaintiff now
concedes that Kevin had no affiliation with Southern. (Doc.
16-1 at 2).
the plaintiff obtained alias summons, again addressed to
Southern at its business address, (Doc. 10), which a process
server personally served on Cody on September 2, 2018. (Doc.
11). The plaintiff also sent process by certified mail to
Southern at its business address, which mailing was signed
for by Cody. (Doc. 12). The plaintiff again sought entry of
default, presenting a sworn declaration that Cody was an
officer and/or owner of Southern. (Doc. 13-2). The Court
denied the application because no factual basis was offered
for the assertion that Cody was an officer or owner and
because the assertion was inconsistent with other evidence.
(Doc. 14). The plaintiff now concedes that Cody was
neither an officer nor an owner of Southern.
present motions rest chiefly on the affidavit of counsel, who
states that he has met with Cody and learned from him the
following: (1) that Thad was the sole owner and officer of
Southern, and that no living owners, members or officers
remain; (2) that no new registered agent has been named since
Thad's death; (3) that no probate action has been opened
following Thad's death; (4) that neither Kevin nor
Cody's other siblings are or have been involved in
Southern's operations; (5) that no person other than Cody
has any affiliation with Southern since Thad's death; (6)
that, during Thad's life, Cody had no job title but
functioned as a job superintendent and was generally
responsible for Southern's day-to-day operations; and (7)
since Thad's death, Cody is the only person capable of
functioning as Southern's manager, because no one else is
affiliated with the company. (Doc. 16-1). The plaintiff
concludes that, by process of elimination, Cody must be a
managing or general agent of Southern and should be declared
such by the Court, thereby validating the September 2, 2018
service on him.
plaintiff identifies a managing agent as “one
authorized to transact all business of a particular kind at a
particular place and must be vested with powers of discretion
rather than being under direct superior control.”
Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376
F.3d 615, 624 (6th Cir. 2004); accord
Grammenos v. Lemos, 457 F.2d 1067, 1073 (2nd
Cir. 1972); 1 James Wm. Moore et al., Moore's Federal
Practice (“Moore's”) §
4.53[b] (3d ed. 2006); cf. Jim Fox Enterprises, Inc.
v. Air France, 664 F.2d 63, 64 (5th Cir.
1981) (a managing agent is one “invested with general
powers involving the exercise of independent judgment and
discretion”). A general agency apparently requires at
least as great a showing. Gottlieb v. Sandia American
Corp., 452 F.2d 510, 513 (3rd Cir.
question is thus whether Cody, when he was served with
process, was authorized to exercise discretionary powers in
transacting all of Southern's business. The Court agrees
with the plaintiff that, if Southern had a managing or
general agent in September 2018, it would have to be Cody.
But the Court is unable to conclude from the plaintiff's
showing that Cody occupied such a position.
plaintiff believes there is evidence that Cody has
“conceded that he [i]s the current manager of the
company by default.” (Doc. 16 at 3). That is not quite
accurate; counsel's affidavit asserts that,
“[s]ince his father's death, Cody Sellers, Sr. has
been the ‘manager' of Southern Recyclers by
default, ” (Doc. 16-1 at 2), but, unlike the other
statements in the affidavit, this one does not contain the
phrase, “Cody confirmed that, ” or words to like
effect. The Court must therefore consider the statement to be
counsel's conclusion rather than Cody's perception.
been a managing or general agent in September 2018, Cody must
at that time have been engaged in the sweep of business
required to support such a position and must have been
authorized to do so. The plaintiff has furnished neither
evidence, argument nor law to establish these points.
plaintiff has presented no evidence that Southern continued
to operate in September 2018; Cody's statement that he
was the only person “capable of functioning as the
manager of” the defendant after Thad died, (Doc. 16-1
at 2), is not a statement that he was in fact doing so, only
that no one else could be doing so.
plaintiff does not argue that Cody was a managing or general
agent during Thad's lifetime but only that he become one
“after the death of Thad.” (Doc. 16 at 3).
Because Thad was the sole owner of Southern and the only
other person affiliated with Southern, only he could have
authorized Cody as a managing or general agent. The plaintiff
has neither explained how Thad could have provided such
authorization after his death nor offered evidence that he
prospectively authorized Cody to become (or remain) a
managing or general agent after his death.
reasons set forth above, the plaintiff's motion to
recognize Chad as a managing or general agent for purposes of
validating the September 2018 service attempt is
of process on an artificial entity such as Southern may be
made by following Alabama law. Fed.R.Civ.P. 4(c)(1),
(h)(1)(A). Alabama permits service by publication on a
defendant that avoids service of process. Ala. R. Civ. P.
corporate defendant avoids service when the plaintiff
demonstrates that the defendant has failed to elect officers
or appoint agents or that the officers or agents are unknown.
Ala. R. Civ. P. 4.3(c). The plaintiff has presented evidence
that Southern has no officers, has no registered agent, and
has no known general or managing agent. If the analysis that
applies to corporations also applies to other artificial
entities, the plaintiff has demonstrated that Southern is
avoiding service as defined by Alabama law. The plaintiff
argues that the same ...