Jean-Felix v. Chicken Kitchen USA, LLC et al
Filing
37
ORDER denying 33 Motion to Vacate ; denying 33 Motion for Extension of Time Signed by Judge Marcia G. Cooke on 5/21/2013. (tm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 10-23105-Civ-COOKE/TURNOFF
LOUIS R. JEAN-FELIX,
Plaintiff,
vs.
CHICKEN KITCHEN USA, LLC, and
CHRISTIAN MAHE DE BERDOUARE,
Defendants.
___________________________________/
ORDER DENYING PLAINTIFF’S MOTION TO VACATE THE
PREVIOUS ORDER VACATING FINAL JUDGMENT AND FOR AN
EXTENSION OF TIME TO EFFECTUATE SERVICE OF PROCESS
THIS MATTER is before me upon Plaintiff Louis R. Jean-Felix’s Motion to Vacate the
Previous Order Vacating Final Judgment and For an Extension of Time to Effectuate Service of
Process.
(ECF No. 33). Defendant Chicken Kitchen USA, LLC filed its Response and
Memorandum of Law in Opposition to Plaintiff’s Motion to Vacate the Previous Order Vacating
Final Judgment and For an Extension of Time to Effectuate Service of Process (ECF No. 35), to
which Plaintiff submitted his Reply in Support of Its [sic] Motion Vacate the Previous Order
Vacating Final Judgment and For an Extension of Time to Effectuate Service of Process (ECF
No. 36). Thus, Plaintiff’s Motion to Vacate the Previous Order Vacating Final Judgment and For
an Extension of Time to Effectuate Service of Process has been fully briefed and is ripe for
adjudication. For the reasons provided herein, Plaintiff’s Motion to Vacate the Previous Order
Vacating Final Judgment and For an Extension of Time to Effectuate Service of Process is
denied.
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BACKGROUND
Plaintiff filed his Complaint (ECF No. 1) allegation employment discrimination and
violation of federal wage and hour laws against Defendants, Chicken Kitchen USA, LLC
(“Chicken Kitchen” or “Defendant”) and Christian Mahe De Berdouare (“Mr De Berdouare”)1
on August 27, 2010. Plaintiff then served “Asaid” as “Registered Agent/Employee authorized to
accept on behalf of Chicken Kitchen USA, LLC” on September 2, 2010. See Pl.’s Notice of
Filing V. Return of Service, ECF No. 6. Chicken Kitchen failed to respond to the Complaint, file
any pleadings or documents, enter an appearance by an attorney, or otherwise defend against the
lawsuit. Based on the Defendant’s failure to respond, on November 23, 2010, a Clerk’s Default
was entered against Defendant pursuant to Federal Rule of Civil Procedure 55(a). See Clerk’s
Default, ECF No.13. Pursuant to an Endorsed Order Requiring Motion for Default Judgment
and Order to Show Cause (ECF No. 14), on April 5, 2011, Plaintiff moved for a Final Default
Judgment against Defendant Chicken Kitchen pursuant to Federal Rule of Civil Procedure 55(b)
(ECF No. 15), which was granted on May 29, 2012 (ECF No. 22).
On June 14, 2012, Defendant moved to vacate the Final Default Judgment against it,
pursuant to Federal Rules of Civil Procedure 55(a) and 60(b), arguing that this Court lacked
personal jurisdiction to enter the judgment because it was not properly served with process (ECF
No. 24). Agreeing that Plaintiff had failed to effectively serve Chicken Kitchen under federal
and state law, I determined that this Court lacked personal jurisdiction over the Defendant,
rendering the judgment void. Consequently, I vacated as void the Final Default Judgment (ECF
No. 22) entered against Chicken Kitchen pursuant to Federal Rule of Civil Procedure 60(b)(4).
(ECF No. 31). It is this vacatur of the Final Default Judgment against Chicken Kitchen that
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Plaintiff never served Defendant Christian Mahe De Berdouare, therefore, he is not a party to the instant
Motion to Vacate.
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Plaintiff now requests I reconsider and set aside pursuant to Federal Rule of Civil Procedure
60(b).
LEGAL STANDARD
Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, a court may relieve a
party from a final judgment, order, or proceeding if there is a showing of mistake, fraud,
inadvertence, misconduct, newly discovered evidence, or if the judgment is void. Fed. R. Civ. P.
60(b); see also Am. Bankers Ins. Co. of Fla. v. Northwest Nat. Ins. Co., 183 F. 3d 1332, 1338 n.4
(11th Cir. 1999). The “purpose of a motion for reconsideration is to correct manifest errors of
law or fact or to present newly discovered evidence.” Arthur v. King, 500 F.3d 1335, 1343 (11th
Cir. 2007). The moving party “must demonstrate why the court should reconsider its prior
decision and set forth facts or law of a strongly convincing nature to induce the court to reverse
its prior decision.” U.S. v. Martinez, 2011 WL 5101973 at *1 (S.D. Fla. 2011) (citations
omitted); see also Slomcenski v. Citibank, N.A., 432 F.3d 1271, 1276 n.2 (11th Cir. 2005).
Courts generally grant motions for reconsideration when there is “(1) an intervening
change in controlling law, (2) the availability of new evidence, and (3) the need to correct clear
error or manifest injustice.” Sanzone v. Hartford Life & Acc. Ins. Co., 519 F. Supp. 2d 1250,
1256 (S.D. Fla. 2007).
DISCUSSION
Plaintiff does not dispute that he failed to perfect service on Chicken Kitchen. Instead, he
asserts that the vacatur of judgment should itself be vacated because justice so requires. See Fed.
R. Civ. P. 60(b)(6).2 Justice compels such relief, according to Plaintiff, because the Defendant
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Plaintiff facially appears to bring this motion pursuant to Federal Rule of Civil Procedure 60(b)(1) by
initially citing to that provision of Federal Rule of Civil Procedure 60(b). However, he states that “Rule
60(b) allows a party to be relieved from an order if that order was based on, among other things, mistake,
fraud, or misconduct by an opposing party,” Pl.’s Mot. Vacate at 2, which is a comingling of the relief
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had actual knowledge of the lawsuit against it, and nevertheless, sat on his right to raise the
defense of lack of proper service until the statute of limitations on Plaintiff’s unpaid wages claim
expired.
I am not compelled by these arguments. First, the fact that Defendant may have had
actual knowledge of the lawsuit is immaterial to whether this Court had jurisdiction over the
Defendant as is conferred by properly effected service. “A defendant’s actual notice is not
sufficient to cure defectively executed service.” Laurent v. Potter, 405 F. App’x 453, 454 (11th
Cir. 2010) (quoting Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007)); see also Boston v.
Potter, 185 F. App’x 853, 854 (11th Cir. 2006) (“Actual notice of a suit does not dispose of the
requirements of service of process.”) (citing Manufacturers Hanover Trust Co. v. Ponsoldt, 51
F.3d 938, 940 (11th Cir.1995)).
Secondly, even if Defendant may have strategically waited to raise its lack of jurisdiction
defense until the Plaintiff could no longer assert the claims against it because of operation of the
applicable statute of limitation, that fact alone does not per se warrant the Plaintiff to a second
bite at the Defendant. See Horenkamp v. Van Winkle And Co., Inc., 402 F.3d 1129, 1133 (11th
Cir. 2005) (“the running of the statute of limitations does not require that a district court extend
the time for service of process”); Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 341
(7th Cir. 1996) (“absent a finding of good cause, a district court may in its discretion still dismiss
a case even after considering that the statute of limitations has run”); Petrucelli v. Bohringer &
Ratzinger, 46 F.3d 1298, 1306 (3d Cir.1995) (same)). Plaintiff’s counsel is charged with having
knowledge of the rules governing service in the jurisdiction in which he elects to bring suit on
provided by Federal Rule of Civil Procedure 60(b)(1) and (3). Following a complete review of Plaintiff’s
arguments, I interpret Plaintiff’s Motion to Vacate to be brought pursuant to Federal Rule of Civil
Procedure 60(b)(6) because he states, “it is in the interest of justice that warrants vacatur,” Pl.’s Mot.
Vacate at 2, and proceeds to argue that fairness, as opposed to an actual mistake, or instance of fraud or
misconduct, entitles him to relief.
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behalf of his client. Consequently, I am unmoved by Plaintiff’s argument that he relied upon the
faulty advice of his process server that an employee of the Defendant was served when it was
facially apparent from the Return of Service that the person served was not an officer or the
registered agent of the Defendant, and that service on the registered agent was not attempted
within the time prescribed by Florida law. See Order Granting Def.’s Mot. Vacate Final Default
J. at 4-6, ECF No. 31.
Thus, the instant case is distinguishable from Horenkamp v. Van Winkle And Co., Inc., in
which the Eleventh Circuit noted that the Advisory Committee for the Federal Rules of Civil
Procedure encourages an extension of time to serve a defendant where “the applicable statute of
limitations would bar the refiled action, or if the defendant is evading service or conceals a
defect in attempted service.” 402 F.3d at 1132-33 (quoting Fed. R. Civ. P. 4(m), Advisory
Committee Note, 1993 Amendments). In Horenkamp, the district court denied the defendant’s
motion to dismiss plaintiff’s complaint for failure to timely perfect service even though plaintiff
could not demonstrate “good cause,” since the failure to timely serve was due to a mistake. In so
denying defendant’s motion to dismiss, the district court reasoned that since “[the defendant] had
notice of the suit via the request for waiver of service, and that it had now been properly served,”
it was a proper use of its discretion to extend the time for service under Federal Rule of Civil
Procedure 4(m). Id. at 1131.
Here, however, there is no assertion or evidence that Defendant was evading service and
Defendant did not conceal a defect in the attempted service since the defect was patent in the
Return of Service. Importantly, the procedural postures of the two cases differ. In Horenkamp,
prior to the ruling on defendant’s motion to dismiss, the plaintiff perfected service on the
defendant. To the contrary, here, months after the filing of Defendant’s Motion to Vacate Final
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Default Judgment, which put Plaintiff on notice of his faulty service, he did not move for an
extension of time to properly serve the Defendant, and still has not attempted to adequately serve
the Defendant. While Plaintiff now may be barred by the statute of limitations from bringing the
claims against it, that result is in part due to his lack of diligence in ensuring that service was
perfected.
Lastly, Plaintiff has not raised a sufficient premise to reconsider the Order Granting
Defendants’ Motion to Vacate Final Default Judgment.
Plaintiff has not identified an
intervening change in controlling law, the availability of new evidence, or the need to correct a
clear injustice distinct from any argument Plaintiff previously raised prior to the adjudication of
Defendant’s Motion to Vacate Final Default Judgment. Plaintiff does not argue that the Court
erred in recitation of the law governing service of a corporation, or the application of the law to
the facts in the instant case. Plaintiff does not allege that Defendant engaged in any fraudulent
behavior, but only that Defendant employed gamesmanship to assert its defenses at a legally
inconvenient time for the Plaintiff. However, Plaintiff previously noted “it is suspicious how
Chicken Kitchen asserts it was not served yet it surprisingly appears after default judgment was
entered and Plaintiff's claims were time-barred.” Pl.’s Resp. Opp’n Def.’s Mot. Vacate Final J at
6, ECF No. 29. Therefore, by presenting these issues again, Plaintiff is rearguing the same
contentions set forth in his Response in Opposition to Defendant’s Motion to Vacate Final
Judgment (ECF No. 29). Compare Pl.’s Mot Vacate, with Pl.’s Resp. Opp’n Def.’s Mot. Vacate
Final J. at 5-7. “[R]elitigation of the legal or factual claims underlying the original judgment is
not permitted in a Rule 60(b) motion or an appeal therefrom.” Agostini v. Felton, 521 U.S. 203,
257 (1997).
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CONCLUSION
Having reviewed the arguments and the record, I find that Plaintiff has failed to
demonstrate a basis arising under Federal Rule of Civil Procedure 60(b) for the vacatur of the
Order Granting Defendants’ Motion to Vacate Final Default Judgment.
Therefore, it is
ORDERED and ADJUDGED that Plaintiff Louis R. Jean-Felix’s Motion to Vacate the
Previous Order Vacating Final Judgment and For an Extension of Time to Effectuate Service of
Process (ECF No. 33) is DENIED.
DONE and ORDERED in chambers at Miami, Florida, this 21st day of May 2013.
Copies furnished to:
William C. Turnoff, U.S. Magistrate Judge
Counsel of record
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