Fleming v. Escort, Inc. et al
Filing
44
MEMORANDUM DECISION AND ORDER. It is hereby ordered, that the Court will reserve ruling on the 43 MOTION for Entry of Default Against Defendant Beach Camera/Buy.Dig.Com. It is further ordered, that Fleming shall file, within ten days, an aff idavit in support of his motion explaining (1) whether he was proceeding under Idaho Rule 4(d)(4)(B); and, if so, (2) how he complied with each requirement of that Rule, and how he obtained the address of Beach Camera. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
HOYT A. FLEMING,
Plaintiff,
Case No. 1:12-CV-066-BLW
v.
MEMORANDUM DECISION AND
ORDER
ESCORT, INC., et al.,
Defendants.
MEMORANDUM DECISION
Plaintiff Fleming has filed a motion for default against defendant Beach Camera.
Fleming mailed the summons and complaint to Beach Camera by registered mail, and the record
shows that the mailing was signed for on February 14, 2012. See Fed-Ex Receipt (Dkt. No. 13-1)
at pg. 95. Since that date, Beach Camera has not filed an answer or other pleading, prompting
Fleming to file this motion for default.
Service on a corporation is governed by Rule 4(h) and may be accomplished either by
personal service on certain corporate officers or by service in compliance with State rules. See
Rules 4(h)(1)(A) & (e)(1). Idaho permits service by mail when a corporation does not have a
registered agent in Idaho for service. See Id.R.Civ.P. 4(d)(4)(B). The mailing must be directed
to the President or Secretary of the corporation, and the serving party must file a receipt showing
the mailing. The service is complete upon mailing to the President or Secretary of the
corporation, according to the Idaho Rule, and so the corporate capacity of the person who
actually signs for the delivery is not relevant. Finally, Fleming must “make a return certificate
Memorandum Decision & Order - 1
indicating compliance with the provisions of this rule . . . .”
The Court has two concerns with Fleming’s service. First, Fleming has not provided any
return showing compliance with Idaho Rule 4(d)(4)(B). To show compliance, Fleming must
explain how he satisfied each requirement of the Rule. The Court is left to guess that Fleming
proceeded under this Idaho Rule because he has not expressed that in his moving papers.
The Court is also concerned with the address of Beach Camera. Fleming has not
explained where he obtained the address. When service is made by mailing, the accuracy of the
address is critical. Fleming needs to explain how he obtained the address.
Thus, the Court is reserving ruling on Fleming’s motion. Fleming shall file, within ten
days, an affidavit in support of his motion explaining (1) whether he was proceeding under Idaho
Rule 4(d)(4)(B); and, if so, (2) how he complied with each requirement of that Rule, and how he
obtained the address of Beach Camera.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the Court will reserve ruling on
the motion for default (docket no. 43).
IT IS FURTHER ORDERED, that Fleming shall file, within ten days, an affidavit in
support of his motion explaining (1) whether he was proceeding under Idaho Rule 4(d)(4)(B);
and, if so, (2) how he complied with each requirement of that Rule, and how he obtained the
address of Beach Camera.
Memorandum Decision & Order - 2
DATED: April 30, 2013
B. LYNN WINMILL
Chief Judge
United States District Court
Memorandum Decision & Order - 3
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