United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
Liberty Mutual Fire Insurance Company (“Liberty
Mutual” or “Plaintiff”) brings a claim of
negligence against Defendant Angela Green
(“Defendant”), alleging that Defendant's
negligence caused damage to a hotel room insured by
Plaintiff. ECF No. 3. Presently pending before the Court is
Plaintiff's Motion for Default Judgment. ECF No. 11. No
hearing is necessary. See Loc. R. 105.6 (D. Md.
2016). Because Defendant has not been properly served,
Plaintiff's Motion will be denied.
is a corporation organized under the laws of the State of
Massachusetts and is in the business of writing insurance and
liability coverage. ECF No. 3 ¶ 1. At all times relevant
to the claim herein, Plaintiff provided property insurance
coverage for an Embassy Suites Hotel in Springfield, Virginia
(the “Hotel”) owned and operated by Miller Global
Properties, LLC (“Miller Global”). Id.
¶¶ 2, 3. On February 27, 2016, Defendant was a
guest at the Hotel, occupying and using Suite 502, when
Defendant and her guests suspended garments from a sprinkler
head in the suite. Id. at ¶ 7-8. Plaintiff
alleges that this activated the sprinkler system within the
suite, causing flooding and substantial property damage to
the Hotel. Id. at ¶ 9.
Clerk of the Court issued a summons on May 5, 2017, ECF No.
5, and a process server unsuccessfully attempted to issue
personal service to Defendant at her residence on five
separate occasions. ECF No. 6-1 ¶ 2. Being unable to
make personal service, the process server left a copy of the
summons posted on the front door of Defendant's
residence. Id. ¶ 3. On September 22, 2017, the
Clerk granted Plaintiff's Motion for Entry of Default as
to Defendant, ECF No. 9, and on October 24, 2017, Plaintiff
filed a Motion for Default Judgment, ECF No. 11.
to Rule 55(a) of the Federal Rules of Civil Procedure,
“when 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 defendant's default does not
automatically entitle the plaintiff to entry of a default
judgment; rather, that decision is left to the discretion of
the court.” Berrios v. Green Wireless, LLC,
No. GJH-14-3655, 2018 WL 1229728, at *2 (D. Md. Mar. 8, 2018)
(citing Educ. Credit Mgmt. Corp. v. Optimum Welding,
285 F.R.D. 371, 373 (D. Md. 2012)). Though the Fourth Circuit
“has a ‘strong policy' that ‘cases be
decided on their merits, '” Choice Hotels
Intern. Inc. v. Savannah Shakti Corp., No. DKC-11-0438,
2011 WL 5118328, at *2 (D. Md. Oct. 25, 2011) (citing
United States v. Shaffer Equip. Co., 11 F.3d 450,
453 (4th Cir. 1993)), “default judgment may be
appropriate when the adversary process has been halted
because of an essentially unresponsive party[.]”
Berrios, 2018 WL 1229728 at *2 (citing S.E.C. v.
Lawbaugh, 359 F.Supp.2d 418, 421 (D. Md. 2005)).
However, a court cannot grant a motion for default judgment
if the defendant was not properly served. See
D'Onofrio v. IL Mattino, 430 F.Supp.2d 431, 438
(E.D. Pa. 2006) (“as part of determining whether it has
personal jurisdiction over a defaulting defendant, the court
must inquire as to whether there was sufficient service of
to Federal Rule of Civil Procedure 4(c)(1), to effectuate
proper service, the defendant must be served with both a copy
of the complaint and the summons issued by the clerk. Service
must be made in accordance with “state law for serving
a summons in an action brought in courts of general
jurisdiction in the state where the district court is located
or where service is made, ” Rule 4(e)(1), or by any of
the following means:
(A) delivering a copy of the summons and of the complaint to
the individual personally; (B) leaving a copy of each at the
individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
4(e)(2). For this action, the commensurate state law for
service of process is found in Maryland Rule 2-121.
Plaintiff's service of process was improper for two
reasons. First, Plaintiff's Affidavit of Service, ECF No.
6-1, only indicates that Plaintiff attempted to serve
Defendant with a copy of the summons-it does not appear that
Plaintiff attempted to provide a copy of the Complaint.
Second, Plaintiff's method of service, by first
attempting personal service and then leaving a copy of the
summons on the front door of Defendant's residence, does
not comport with applicable Federal or Maryland Rules.
Notably, the Maryland Rules permit service as follows:
(1) by delivering to the person to be served a copy of the
summons, complaint, and all other papers filed with it; (2)
if the person to be served is an individual, by leaving a
copy of the summons, complaint, and all other papers filed
with it at the individual's dwelling house or usual place
of abode with a resident of suitable age and discretion; or
(3) by mailing to the person to be served a copy of the
summons, complaint, and all other papers filed with it by
certified mail requesting: “Restricted Delivery--show
to whom, date, address of delivery.”
MD Rule 2-121(a). While the rules permit other means of
service “reasonably calculated to give actual notice,
” such means are only permitted by court order after
the plaintiff offers sufficient proof that it either made a
good faith effort to serve the defendant in accordance with
the rules or that the defendant has acted to evade service.
See Id. 2-121(b), (c). Because Plaintiff did not
first obtain an order from this Court allowing alternate
means of service, service was improper.
the method by which Plaintiff attempted to serve Defendant is
not permitted in Maryland and would not have been permitted
by this Court. While Maryland courts permit service by the
use of the “nail and mail” method, whereby notice
is posted at a defendant's residence and mailed through
first-class mail when good faith efforts to serve pursuant to
MD Rule 2-121(a) are unsuccessful, the notice must be both
posted and mailed-mere posting at a defendant's
purported residence is not enough. See Pickett v. Sears,
Roebuck & Co., 775 A.2d 1218, 1227-28 (Md. 2001);
see also Auld v. Montoya-Hernandez, No. ELH-11-969,
2012 WL 1379452, at *2 (D. Md. Apr. 17, 2012) (permitting
‘nail and mail' service when good faith efforts to
serve were ...