Grady v. Swisher

Filing 12

ORDER; Plaintiff's 10 Motion for Final Default Judgment, Damages, Attorney's Fees & Costs, and Permanent Injunction is DENIED without prejudice. It is FURTHER ORDERED that the Clerk's Entry of Default is STRICKEN. It is FURTHER ORD ERED that on or before 2/4/2013, Plaintiff shall either (1) file an amended affidavit demonstrating that all of the requirements of Fed.R.Civ.P.4(e) have been met, or (2) file new proof of service on Defendant. Failure to timely file adequate proof of service on Defendant may result in a recommendation that this matter be dismissed in its entirety, by Magistrate Judge Kristen L. Mix on 12/20/2012.(klmcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02880-WYD-KLM
JAMES S. GRADY, doing business as Group Five Photosports,
Plaintiff,
v.
WILLIAM SWISHER,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Final Default Judgment,
Damages, Attorney’s Fees & Costs, and Permanent Injunction [Docket No. 10; Filed
March 13, 2012] (the “Motion”).

Pursuant to 28 U.S.C. § 636(b)(1)(A) and

D.C.COLO.LCivR 72.1C., the Motion is referred to this Court. [#11].
As an initial matter, entry of a default judgment in a civil case requires that the Court
has personal jurisdiction over the defendant. Bixler v. Foster, 596 F.3d 751, 761 (10th Cir.
2010). The Court must first address the adequacy of service in deciding whether it has
personal

jurisdiction

over

Defendant.

See

United

States

v.

Elsberg,

No.

08-cv-00522-MSK-KLM, 2010 WL 5177439, at *2 (D. Colo. Aug. 17, 2010). Plaintiff’s
Complaint identifies Defendant as an individual. Compl. [#1] ¶ 19. Therefore, the Court
analyzes the adequacy of service in the context of Fed. R. Civ. P. 4(e), which establishes
the requirements for service of an individual within a judicial district of the United States.

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Rule 4(e) provides that service on an individual in a judicial district of the United States is
adequate if effected in one of four ways, including by “leaving a copy of [the summons and
complaint] at the individual’s dwelling or usual place of abode with someone of suitable age
and discretion who resides there.” Fed. R. Civ. P. 4(e)(2)(B).
Plaintiff bears the burden of establishing personal jurisdiction. Intercon, Inc. v. Bell
Atl. Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir. 2000). “[P]laintiff need only
make a prima facie showing [of personal jurisdiction] if the motion [for default judgment] is
decided only on the basis of the parties' affidavits and other written materials.” Dennis
Garberg & Assoc., Inc., 115 F.3d at 773. On January 3, 2012, Plaintiff filed a return of
service demonstrating that a private process server personally delivered the summons and
complaint to a white male in his fifties at Defendant’s residence who acknowledged that
Defendant was inside the residence. [#5]. However, Plaintiff has provided no evidence that
the person served resided at Defendant’s residence, as required by Rule 4(e)(2)(B). See,
e.g., Hard Drive Prods. v. Doe, No. C 11-03826 DMR, 2012 WL 3945501, at *2 (N.D. Cal.
Sept. 10, 2012) (finding that the defendant was not properly served when the defendant’s
father, who was visiting his son, was served at the defendant’s residence). Further, Plaintiff
has failed to demonstrate that he has complied with the service requirements either for the
State of Colorado (where this Court sits), Colo. R. Civ. P. 4, or for the State of Ohio (where
service was made), Ohio R. Civ. P. 4. See Fed. R. Civ. P. 4(e)(1). The Court therefore
finds that Plaintiff has failed to demonstrate that Defendant was properly served in
compliance with Fed. R. Civ. P. 4(e).
“A default judgement entered when there has been no proper service of the
complaint is improper and void . . . .” United States v. Zotter, No. 11-0002, 2011 WL
-2-

1792533, at *2 (W.D. Pa. May 9, 2011) (citing Fed. R. Civ. P. 55(c), 60(b)(4); Petrucelli &
Ratzinger, GMBH, 46 F.3d 1298, 1303-04 (3d Cir. 1995)). Thus, the Court need not
address Plaintiff’s arguments on the merits. See Zotter, 2011 WL 1792533, at *2 (citing
Gold Kist, Inc. v. Laurinburg Oil Comp., Inc., 756 F.2d 14, 18-19 (3d Cir. 1985)).
Accordingly,
IT IS HEREBY ORDERED that the Motion [#10] is DENIED without prejudice.
IT IS FURTHER ORDERED that the Clerk’s Entry of Default [#8] is STRICKEN.
IT IS FURTHER ORDERED that, on or before February 4, 2013, Plaintiff shall
either: (1) file an amended affidavit demonstrating that all of the requirements of Fed. R.
Civ. P. 4(e) have been met, or (2) file new proof of service on Defendant. Failure to timely
file adequate proof of service on Defendant may result in a recommendation that this
matter be dismissed in its entirety.

Dated: December 20, 2012

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