Essex Insurance Company v. Pierce Transportation, Inc. et al
Order re: 6 Application to Clerk for Entry of Default filed by Essex Insurance Company. Plaintiff is directed by 11/12/2014 to supplement its application, as set out. Signed by Chief Judge William H. Steele on 10/29/2014. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ESSEX INSURANCE COMPANY,
PIERCE TRANSPORTATION, INC., et al., )
CIVIL ACTION 14-0421-WS-M
This matter comes before the Court on review of Plaintiff’s Application for Clerk’s Entry
of Default (doc. 6). In that Application, plaintiff, Essex Insurance Company, asserts that it
served process on defendant Pierce Transportation, Inc. via certified mail on September 26,
2014, that the time for Pierce Transportation to file an answer or other responsive pleading
pursuant to Rule 12(a)(1)(A)(i) has expired, and that Pierce Transportation has filed nothing,
such that entry of default is appropriate as to this defendant.
The Court requires Essex to supplement its Application to establish the sufficiency of
service of process on this defendant. “Generally, where service of process is insufficient, the
court has no power to render judgment and the judgment is void.” In re Worldwide Web
Systems, Inc., 328 F.3d 1291, 1299 (11th Cir. 2003). This is because “[s]ervice of process is a
jurisdictional requirement: a court lacks jurisdiction over the person of a defendant when that
defendant has not been served.” Hemispherx Biopharma, Inc. v. Johannesburg Consol.
Investments, 553 F.3d 1351, 1360 (11th Cir. 2008) (citation omitted). Thus, in determining
whether entry of default is appropriate against a party that has failed to plead or otherwise
defend, “the district court has an affirmative duty to look into its jurisdiction over both the
subject matter and the parties. … A court cannot obtain personal jurisdiction over a party without
proper service of process.” Thalassinos v. Adair, 2013 WL 2245138, *3 (S.D. Ala. May 20,
2013) (citation omitted). Of course, it is Essex’s burden to show that service of process was
properly completed and, therefore, that the requisite jurisdiction exists over defendant Pierce
Transportation to warrant entry of default.
On this record, Essex’s Application leaves significant unanswered questions as to
whether service of process has been validly perfected on this defendant. Specifically, Essex filed
two Proofs of Service as to defendant Pierce Transportation. The first Proof of Service reflects
that a certified mailing directed to an individual named “Lane Pierce” at 30969 U.S. Hwy. 55,
Red Level, AL 36474, was delivered and signed for by a person named “Shea Worley” on
September 15, 2014. (See doc. 4.) The second Proof of Service reflects that a certified mailing
directed to Lane Pierce at Pierce Transportation, Inc., 30969 U.S. Highway 55, Red Level, AL
36474, was delivered and signed for by a person named “Leigh Jones” on September 26, 2014.
(See doc. 5.)
The Court has two principal concerns. First, while Alabama Secretary of State records
confirm that Lane Pierce is the registered agent for Pierce Transportation, Inc., neither Proof of
Service reflects that certified mailings were sent to Lane Pierce at the listed “Registered Office
Street Address,” which is 604 Second Ave., Andalusia, AL 36420. (See doc. 1-1.) The Court
cannot determine on this record why Essex apparently eschewed efforts to serve this registered
agent at the published Andalusia address, what is located at the address where service of process
was attempted, whether that address has any present connection to Pierce Transportation, Inc., or
whether it might represent a business or residential address for Lane Pierce. Second, plaintiff
provides no information as to who “Shea Worley” and “Leigh Jones” are or what their
connection to Pierce Transportation might be, much less whether Lane Pierce has specifically
authorized those persons to receive his mail and to deliver that mail to him, pursuant to Rule
4(i)(2)(C), Ala.R.Civ.P. Based on these shortcomings, the Court cannot determine on this
showing that service of process has been perfected on Pierce Transportation pursuant to either
Rule 4(h)(1)(A) or 4(h)(1)(B), Fed.R.Civ.P.
In light of the foregoing, Essex is ordered to supplement its Application for Clerk’s
Entry of Default on or before November 12, 2014 with sufficient factual and/or legal materials
to demonstrate that valid service has been performed on Pierce Transportation in accordance
with Rule 4(h), Fed.R.Civ.P.
DONE and ORDERED this 29th day of October, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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