United States of America v. Austin
Filing
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OPINION AND ORDER; granting 9 Motion to Set Aside Judgment. The Clerk's entry of default 6 and Court's entry of final default judgment 8 are vacated. Signed by Judge Kenneth A. Marra on 9/16/2011. (asl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-80701-CIV-MARRA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
SYBIL AUSTIN,
Defendant.
_____________________________________/
OPINION AND ORDER
This cause is before the Court upon Defendant’s, Sybil Austin (“Defendant”), Motion for
Relief from Final Default Judgment by Special Appearance (DE 9). The Court has carefully
considered the motion and is otherwise fully advised in the premises.
On June 17, 2011, Plaintiff United States of America (“Plaintiff”) filed a Complaint
against Defendant for failure to pay an educational debt (DE 1). The summons was served on
June 22, 2011, and Return of Service was filed on July 5, 2011 (DE 4). A Clerk’s Entry of
Default was entered against Defendant on July 18, 2011 (DE 6). On July 19, 2011, Plaintiff filed
a Motion for Entry of Default Judgment (DE 7). Defendant did not file a timely response. The
Court granted final default judgment against Defendant on August 5, 2011 (DE 8). Defendant
filed the instant motion, and Plaintiff has failed to file a timely response.
To relieve a party from an entry of final default judgment, the Court looks to Rule 60 (b)
of the Federal Rules of Civil Procedure. Rule 60(b) states that a Court may relieve a party from
final judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4)
the judgment is void; (5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is not longer equitable; or (6) any other reason that justifies relief.
Fed.R.Civ.P. 60(b). Defendant argues in her motion that, since service of process was
insufficient, the court lacked personal jurisdiction, and the judgment is therefore void under Rule
60(b)(4).
A judgment is void under Rule 60(b)(4) if the court that rendered that judgment lacked
subject matter jurisdiction, the court’s conduct in rendering the judgment was not consistent with
due process of law, or the court was powerless to enter the judgment in the first place. Burke v.
Smith, 252 F.3d 1260, 1263 (11 Cir. 2011). More specifically, if service of process is
insufficient, the court generally has no power to render judgment, so the judgment is void.
United States v. Varmado, 342 Fed.Appx. 437, 438 (11 Cir. 2009)(citing In re Worldwide Web
Sys., 328 F.3d 1291, 1299 (11th Cir. 2003)).
Federal Rule of Civil Procedure 4(e) discusses serving an individual with a summons
within a judicial district of the United States. The rule states,
Unless federal law provides otherwise, an individual–other than a minor, an
incompetent person, or a person who waiver has been filed–may be served in a
judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where service
is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the
individual personally;
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(B) leaving a copy of each at the individual’s dwelling or usual place of
abode with someone of suitable age and discretion who resides there; or
( C) delivering a copy of each to an agent authorized by appointment or by
law to receive service of process.
Fed.R.Civ.P. 4(e). Thus, in order for service of process to be valid, Plaintiff must have served
Defendant with the summons and complaint by following Florida law, by personally delivering
the summons and complaint to Defendant, by leaving a copy of each at Defendant’s dwelling or
usual place or abode, or by delivering a copy of each to the agent authorized by appointment or
law to receive service of process. Florida Statute §48.031 requires that service of process be
completed by delivering a copy of the summons and complaint personally, leaving the copies at
the individual’s “usual place of abode with any person residing therein who is 15 years of age or
older and informing the person of their contents”, or making substitute service with the
individual’s spouse pursuant to 48.031(2). Fla. Stat. §48.031.
The process server averred in the affidavit of service that, on June 22, 2011, he
“substitute served by delivering a true copy of the summons in a civil action, complaint and
exhibits . . . to Jane Doe as co-resident/authorized to accept at [Defendant’s address], the within
named person’s usual place of Abode, who resides therein, who is fifteen (15) years of age or
older. . . .” (DE 4). The process server also wrote in the affidavit, “attempted service–an
unidentified woman answered the door & said the subject does reside at this address–she said she
was the maid who also lives here, but she would not accept the documents–server explained that
she was being served as a co-resident–she would not provide her name & closed the door on the
server.” (DE 4). Based on this language, the real issue is whether the process server left a copy
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of service at Defendant’s dwelling with someone of suitable age and discretion who resided
there.
While the process server attested that “Jane Doe”1 was “authorized” to accept service on
Defendant’s behalf, the only legal basis for service on this individual would have been her
residence at Defendant’s home. The affidavits of Sybil Austin, Lawrence B. Austin, and
Ghislaine Gauthier, however, attached to the Defendant’s motion for relief from final judgment,
all establish both that Defendant’s part-time housekeeper, Ghislaine Gauthier, was not authorized
to accept service on Defendant’s behalf and that she did not reside at Defendant’s home (DEs 91, 9-2, 9-3). Ms. Gauthier’s driver license attached to her affidavit also illustrates that
Defendant’s house is not her primary residence (DE 9-3). Thus, Defendant’s evidence
contradicts the process server’s assertion that “Jane Doe” resided at Defendant’s home.
Once a defendant brings the sufficiency of service into question, it is the Plaintiff’s
burden to prove sufficient service. Cornwall v. Miami-Dade Cnty. Corrs. and Rehab. Dept.,
2011 WL 3878352, *2 (S.D. Fla. 2011)(citing Banco Latino, S.A.C.A. v. Gomez Lopez, 53
F.Supp.2d 1273, 1277 (S.D. Fla. 1999)). Plaintiff has not replied to Defendant’s motion or
provided any evidence to controvert the affidavits. Based on Defendant’s evidence, it appears
process was not properly served upon Defendant, which makes this Court’s final default
judgment void. Pursuant to Rule 60(b)(4), the default judgment must therefore be set aside.
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“Jane Doe” is actually Ghislaine Gauthier, according to Defendant.
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Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion for
Relief from Final Default Judgment by Special Appearance (DE 9) is GRANTED. The Clerk’s
entry of default (DE 6) and Court’s entry of final default judgment (DE 8) are VACATED.
Plaintiff must properly serve Defendant in order to proceed with this case.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 16th day of September, 2011.
______________________________________
KENNETH A. MARRA
United States District Judge
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