United States District Court, D. Maryland, Northern Division
REPORT AND RECOMMENDATION
Deborah L. Boardman United States Magistrate Judge.
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.
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. 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.
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.
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.
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.
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
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).
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)).
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.
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,
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
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 ...