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The Davey Tree Expert Co. v. Moon Site Management, Inc.

United States District Court, D. Maryland, Northern Division

January 15, 2020

THE DAVEY TREE EXPERT CO., Plaintiff,
v.
MOON SITE MANAGEMENT, INC., Defendant.

          REPORT AND RECOMMENDATION

          Deborah L. Boardman United States Magistrate Judge.

         The Davey Tree Expert Company (“Davey”) filed suit against Moon Site Management, Inc. (“Moon Site”) on April 29, 2019, alleging that Moon Site failed to pay it for the landscaping and storm damage services that Davey provided under four contracts between the parties. Compl. ¶¶ 6-22, ECF No. 1. The filings in the five months that followed were one-sided. Davey filed an Affidavit of Service on May 24, 2019, asserting that on May 14, 2019, it had effected service on “Aubree Orsini, Accounting Department Specialist, ” who was “authorized to accept service.” ECF No. 4. Davey then requested a Clerk's Entry of Default on June 25, 2019, ECF No. 5, which the Clerk entered on June 27, 2019, ECF No. 6, and it filed a Motion for Default Judgment on August 14, 2019, ECF No. 7, which the Court granted on August 29, 2019. Additionally, Davey filed a Motion for Attorney Fees and Costs on September 12, 2019, ECF No. 9, which the Court granted on September 30, 2019, ECF No. 10.

         Finally, on October 8, 2019, Moon Site filed a Motion to Vacate Default Judgment and Memorandum in Support, ECF Nos. 11, 11-1, which it amended on November 5, 2019, ECF Nos. 18, 18-1.[1] Moon Site argues that the Court should vacate the default judgment because Davey did not properly serve it with process, rendering the judgment void. Def.'s Am. Mem. 6-8. Moon Site also contends that, even if the judgment is not void due to improper service, Moon Site's failure to respond was a result of mistake, inadvertence, or excusable neglect. Id. at 9. Davey filed an opposition, ECF No. 22, and Moon Site filed a reply, ECF No. 23. A hearing is not necessary. See Loc. R. 105.6.

         Davey's service of process was, in fact, improper, rendering the judgment void. Thus, notwithstanding Moon Site's failure to respond to the Motion for Default Judgment, given that the resulting delay did not unfairly prejudice Davey and the Fourth Circuit has expressed a strong preference for resolving cases on the merits, I will recommend that Judge Blake grant Moon Site's Amended Motion to Vacate Default Judgment, strike the default judgment, ECF No. 8, and the order awarding attorneys' fees, ECF No. 10, and direct Davey to effect proper service on Moon Site.

         Standard of Review

         Moon Site filed its Amended Motion to Vacate Default Judgment pursuant to Rule 55(c), which provides that “[t]he court may set aside . . . a final default judgment under Rule 60(b).” Fed.R.Civ.P. 55(c). Rule 60(b), in turn, provides that a judgment may be set aside if “the judgment is void, ” among other reasons. Fed.R.Civ.P. 60(b)(4). Moon Site relies primarily on this argument, insisting that the judgment against it is void because service of process was improper and, consequently, the Court never obtained personal jurisdiction over it. Def.'s Am. Mem. 6-8.

         A defendant seeking to set aside a judgment typically must show that “one or more of the six grounds set forth in Rule 60(b) is satisfied” and also that “its motion is timely, that it has a meritorious defense to the action, [and] that the opposing party would not be unfairly prejudiced by having the judgment set aside.” Hawkins v. MV Transp., Inc., No. PJM-15-2169, 2017 WL 5716757, at *3 (D. Md. Nov. 27, 2017) (citing Park Corp v. Lexington Ins. Co., 812 F.2d 894, 896 (4th Cir. 1986)). For a judgment to be set aside on the ground that it is void, however, timeliness is not an issue, and the defendant does not have to establish a meritorious defense. See Bd. of Trs. of the Int'l Union of Operating Eng'rs, Local 37 Benefit Funds v. Chesapeake Crane Serv., Inc., No. GLR-13-1245, 2016 WL 1253285, at *1 & n.2 (D. Md. Mar. 30, 2016) (noting that a “Rule 60(b)(4) Motion may be brought to set aside a void judgment at any time” and a “movant claiming relief under Rule 60(b)(4) need not establish a meritorious defense”); see also Hawkins, 2017 WL 5716757, at *4 (same). Accordingly, I will consider whether the judgment is void and whether setting it aside would unfairly prejudice Davey.

         Discussion

         Moon Site's principal argument is that service was improper. Def.'s Am. Mem. 8-9. If service on Moon Site was improper, the Court lacks personal jurisdiction over Defendant, the judgment is void, and Moon Site is entitled to relief under Rule 60(b)(4). See Koehler v. Dodwell, 152 F.3d 304, 306- 07 (4th Cir. 1998) (“Absent waiver or consent, a failure to obtain proper service on the defendant deprives the court of personal jurisdiction over the defendant. Moreover, any judgment entered against a defendant over whom the court does not have personal jurisdiction is void.”); see also Pennoyer v. Neff, 95 U.S. 714, 733 (1878) (observing that, in a personal liability action, a defendant “must be brought within [the court's] jurisdiction by service of process within the State, or his voluntary appearance”); Citibank, N.A. as trustee for Am. Mortg. Inv. Tr. 2004-3 v. Berliner, No. JKB-17-1172, 2019 WL 3892559, at *2 (D. Md. Aug. 19, 2019) (quoting Koehler); Republic Props. Corp. v. Mission W. Props., LP, 895 A.2d 1006, 1015 (Md. 2006) (“[Maryland] Rule 2-124[] does not delimit the jurisdictional limits of Maryland courts, but rather serves as part of the service of process rules that define the procedural requirements that enable a Maryland court to obtain jurisdiction over a defendant where constitutionally permitted.”).

         To serve a corporation such as Moon Site, a plaintiff must “follow[] the state law for serving a summons in the state where the action is located or where service is made.” Clayton v. Islas Transportation, LLC, No. PX-18-3964, 2019 WL 4805671, at *3 (D. Md. Oct. 1, 2019) (citing Fed.R.Civ.P. 4(e)(1), (h)). This action is in Maryland, and Davey asserts that it served Moon Site in Maryland. Accordingly, the Maryland Rules apply. See id.; Fed.R.Civ.P. 4(e)(1), (h). Maryland Rule 2-124(d) provides that “[s]ervice is made upon a corporation . . . by serving its resident agent, president, secretary, or treasurer.” Md. Rules 2-124(d).

         Davey filed an Affidavit of Service in which the private process server stated that he “served Moon Site Management, Inc. c/o John Pursell, Resident Agent . . . by serving Aubree Orsini, Accounting Department Specialist, authorized to accept service.” Aff. of Serv., ECF No. 4; see also Am. Aff. of Serv., ECF No. 17-2. “A process server's filing of a proper proof of service constitutes ‘prima facie evidence of valid service of process.'” Putt-Putt, LLC v. 416 Constant Friendship, LLC, No. 12-3018-AW, 2013 WL 12246353, at *1 (D. Md. Feb. 13, 2013) (quoting Ngabo v. Le Pain Quotidien, No. DKC-11-0096, 2011 WL 978654, at *2 (D. Md. Mar. 17, 2011)).

         Moon Site denies that service was proper. “‘[A] mere denial of service is not sufficient' to rebut the presumption of validity”; the defendant also must provide “‘corroborative evidence by independent, disinterested witnesses.'” Bd. of Trs., 2016 WL 1253285, at *2 (quoting Wilson v. Md. Dep't of Env't, 92 A.3d 579, 587 (Md. Ct. Spec. App. 2014)). Moon Site has done so here. It has filed an affidavit from its in-house counsel and president, William Hutchins, who asserts that “only Mr. Pursell, ” as Moon Site's resident agent, “is authorized to accept service on MSM's behalf, ” unless “Mr. Pursell is unavailable or otherwise unable to accept service, ” in which case Hutchins is “authorized to accept service on MSM's behalf.” Hutchins Aff. ¶¶ 1-2, 7-9, ECF No. 18-2. According to Hutchins, “Ms. Orsini was never authorized to accept service on MSM's behalf.” Hutchins Aff. ¶ 13. Moon Site also filed an affidavit from Pursell, who made the same assertions. Pursell Aff., ECF No. 18-3.

         These affidavits are corroborated by additional, independent evidence. Moon Site's President William Hutchins attached a copy of the page listing John Pursell as Moon Site's resident agent on the Maryland State Department of Assessments and Taxation's website. See Website Printout, ECF No. 18-2, at 8; Maryland Business Express, https://egov.maryland.gov/BusinessExpress/EntitySearch/ BusinessInformation/F04368445; see also Fed. R. Evid. 201(b)(2) (permitting the Court to take judicial notes of facts that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”). Thus, the identity of Moon Site's resident agent was readily available to Davey. Indeed, Davey filed a proposed summons along with its pleading, listing Defendant as “Moon Site Management, Inc. c/o John Pursell, ” ECF No. 1-8, and its private process server referred to Pursell as Moon Site's resident agent, see Aff. of Serv.; see also Am. Aff. of Serv.

         Notwithstanding Davey's knowledge that Pursell was Moon Site's resident agent, Davey did not serve him. Davey served Aubree Orsini, Moon Site's “Accounting Department Specialist.” The process server stated that “Aubree Orsini came to the door, ” and he “explained to her that [he] had documents to provide for the company.” Am. Aff. of Serv. (emphasis added). He then “showed her the documents and Aubree Orsini stated that she was authorized to accept service on behalf of the company as the Accounting Department Specialist.” Id. (emphasis added). Notably, the process server did not state that he informed Ms. Orsini that he had a complaint and summons for Mr. Pursell specifically. Nor did he state that Ms. Orsini told him that she was authorized to accept service on behalf of Mr. Pursell in his capacity as Moon Site's resident agent. Without these assertions, it is not clear what led the process server to believe he could effect service on Mr. Pursell by leaving the documents with a member of Moon Site's accounting department. Ms. Orsini is not Moon ...


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