United States District Court, D. Maryland, Southern Division
CHARLES B. DAY, Magistrate Judge.
Before this Court is Plaintiff's Motion for Entry of Default (Defendant Javar Battle) and for Judgment by Default (the "Motion") (ECF No. 32). The Court has reviewed the Motion, related memoranda, and applicable law. No hearing is deemed necessary. See Local Rule 105.6 (D. Md.). For the reasons presented below, the Court DENIES the Motion.
I. Factual and Procedural Background
Martina L. Hodges (the "Decedent") is the daughter of Lolita Hodges ("Plaintiff"). The Decedent suffered from Rett's Syndrome and scoliosis, had rods fused to her spine, and was wheelchair bound. On February 14, 2011, Javar Battle ("Defendant"), at the time employed by a transportation service for disabled individuals, was driving the Decedent to an adult daycare facility when the wheelchair in which the Decedent was seated tipped over, causing the Decedent to fall and sustain severe injuries. Her back and neck were broken, rendering her quadriplegic and necessitating a surgery which she did not survive.
Unaware of the identity of the driver of the vehicle in which the Decedent sustained her injuries, on or about February 11, 2014, Plaintiff filed a complaint in Maryland state court against a "John Doe" defendant, as well as the companies that employed him, for negligence and wrongful death. ECF No. 2. The John Doe defendant did not file an Answer. The case was removed to federal court on March 21, 2014. ECF No. 1.
On June 21, 2014, soon after the discovery of the Doe defendant's identity, Plaintiff served Defendant with a copy of the state court complaint (ECF No. 2). On July 15, 2014, Plaintiff filed a motion to amend in this Court to bring the state court complaint into compliance with federal filing requirements and to substitute the Doe defendant with Defendant Javar Battle. ECF No. 29. This motion was granted on October 9, 2014. ECF No. 41. After Defendant did not reply to the state court complaint for nearly sixty days, Plaintiff filed the Motion.
II. Standard of Review
Rule 55 of the Federal Rules of Civil Procedure governs entries of default and default judgments. Rule 55(a) provides that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed.R.Civ.P. 55(a). A party who has been properly served with a summons and complaint "must serve an answer within 21 days after being served." Fed.R.Civ.P. 12(a)(1)(A).
Entry of default and default judgment may only be entered after a defendant has been properly served. See, e.g., Maryland State Firemen's Ass'n v. Chavez, 166 F.R.D. 353, 354 (D. Md. 1996) (noting that "[i]t is axiomatic that service of process must be effective under the Federal Rules of Civil Procedure before a default or default judgment may be entered against a defendant").
Service of process is governed by Rule 4 of the Federal Rules of Civil Procedure, which indicates that for service to be proper, a plaintiff must serve a defendant with a copy of the complaint and the summons. Fed.R.Civ.P. 4(c)(1). The summons must, inter alia, include the name of the court where the complaint is pending and the parties to the case, state the time within which the defendant must appear and defend, be signed by the clerk, and bear the court's seal. Fed R. Civ. P. 4(a)(1).
On June 21, 2014, Plaintiff served Defendant with a copy of the complaint it served to the other defendants in February along with a new summons. ECF No. 38, Ex. 1. While the summons did name Defendant, it was for a terminated proceeding in the Circuit Court for Prince George's County. This case is before the U.S. District Court for the District of Maryland, and the summons was required to indicate as much. Fed.R.Civ.P. 4(a)(1). The summons also indicated that Defendant was required to answer within 30 days of receipt. However, had service been proper, Defendant would have been required to answer within 21 days, and to this Court. Fed.R.Civ.P. 12(a)(1)(A). Plaintiff's service fails the requirements of proper service.
Plaintiff argues that service was proper because Defendant had notice of the pendency of a complaint against him. Support for this argument can be found in the Fourth Circuit, which has held that "[w]hen the process gives the defendant actual notice of the pendency of the action, the rules, in general, are entitled to a liberal construction." Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir.1984). However, it is unclear that Defendant had actual notice of the commencement of this action in this Court. The service Plaintiff gave to Defendant, standing alone, would tend to lead Defendant to believe he was facing a defunct state court complaint. If Defendant asked the Circuit Court for Prince George's County about that complaint, he may have found out that it had been terminated and would not have known of a duty to defend in this Court. Plaintiff's service did not put Defendant on notice of the pendency of this action and thus did not affect proper service.
Plaintiff argues that Defendant, or his legal representative, should be the one to raise any issues regarding defective service of process. Plaintiff is correct that the defense counselors who penned the opposition to the Motion have not entered an appearance for Defendant, and this Court recommends that if these defense counselors intend to provide legal counsel to Defendant, they should enter an appearance to do so. However, regardless of the opposition to the Motion, the ...