Wills v. Lacefield et al

Filing 31

ORDER DENYING 11 Motion for Default Judgment and DENYING AS MOOT 22 Motion to Consolidate Cases. Plaintiff has until October 31, 2013 to properly effect service on Defendant Bumgarner. Signed by Honorable P. K. Holmes, III on September 16, 2013. Copy of order mailed to non-CM/ECF participant. (jas) Modified text on 9/16/2013 (jas).

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
MARTIN D. WILLS
v.

PLAINTIFF
Case No. 3:13-CV-03003

JANET FAYE LACEFIELD and JAMES BUMGARNER

DEFENDANTS

ORDER
Currently before the Court are Plaintiff’s motion (Doc. 11) for default judgment against
James Bumgarner and Defendant Janet Faye Lacefield’s motion (Doc. 22) to consolidate cases.
Plaintiff Martin D. Wills moves for default judgment against Defendant James Bumgarner.
Wills filed an affidavit of service for Bumgarner on November 5, 2012. It appears that Wills
attempted to serve Bumgarner using the procedure set forth in Arkansas Rule of Civil Procedure
4(d)(8)(A), as called for by the local rules of this Court. Local Rule W.D. Ark. 4.1. That rule
provides in pertinent part:
Service of a summons and complaint upon a defendant ... may be made ... by any
form of mail addressed to the person to be served with a return receipt requested and
delivery restricted to the addressee or the agent of the addressee.
...
Service pursuant to this paragraph shall not be the basis for the entry of a default or
judgment by default unless the record contains a return receipt signed by the
addressee or the agent of the addressee or a returned envelope, postal document or
affidavit by a postal employee reciting or showing refusal of the process by the
addressee. If delivery of mailed process is refused, the plaintiff or attorney making
such service, promptly upon receipt of notice of such refusal, shall mail to the
defendant by first class mail the copy of the summons and complaint and a notice that
despite such refusal the case will proceed and the judgment by default may be
rendered against him unless he appears to defend the suit.
Ark. R. Civ. P. 4(d)(8)(A)(i)-(ii).
There is no evidence on the record that Wills successfully served Bumgarner under this rule
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such that default should be entered. Wills attached to his affidavit of service, an envelope showing
that the summons and complaint were returned as “unclaimed.” The Supreme Court of Arkansas
has clearly stated that “[w]ith respect to Rule 4(d)(8)(A), the active nature of refusal is spelled out
with care. The record must contain ‘a return receipt signed by the addressee or the agent of the
addressee or a returned envelope, postal document or affidavit by a postal employee reciting or
showing refusal of the process by the addressee.’” Meeks v. Stevens, 301 Ark. 464, 468 (1990)
(emphasis added in original). The Arkansas Supreme Court adopted the view that “[r]eturn of an
attempted service by registered mail is not tantamount to a refusal to receive service of process.”
Id. The record contains no return receipt signed by the addressee, postal document or affidavit
evidencing affirmative refusal of service. Furthermore, although Wills also attaches a deliveryconfirmation printout of a second mailing of the summons and complaint to his affidavit of service,
there is no signed return receipt evidencing delivery to Bumgarner as required for effective service
under Arkansas Rule of Civil Procedure 4(d)(8)(A). As there is no evidence that Wills has validly
effected service on Bumgarner, nor evidence that attempted service was refused, Wills’s motion for
default judgment will be DENIED.
Because Wills is proceeding pro se and because it appears that Wills had a good-faith belief
that his attempt at service was valid and effective, the Court finds good cause to allow Wills to
properly serve Defendant Bumgarner within 45 days of the date of entry of this Order.
Defendant Janet Faye Lacefield moved to consolidate this case with another then-pending
case between her and Wills and several other defendants. The other pending case has since been
dismissed. The Court therefore finds that Lacefield’s motion to consolidate should be DENIED AS
MOOT.
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For all of the above-stated reasons IT IS ORDERED that Plaintiff’s motion (Doc. 11) for
default judgment is DENIED.
IT IS FURTHER ORDERED that the time for Wills to properly effect service on Bumgarner
is extended to Thursday, October 31, 2013.
IT IS FURTHER ORDERED that Defendant Lacefield’s motion (Doc. 22) to consolidate is
DENIED AS MOOT.
IT IS SO ORDERED this 16th day of September, 2013.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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