Reser's Fine Foods, Inc. v. H.C. Schmieding Produce Company, LLC et al
Filing
46
MEMORANDUM AND ORDER denying 43 Motion for Entry of Default. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 3/7/17. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RESER’S FINE FOODS, INC.,
Plaintiff,
vs.
Case No. 16-4150-SAC-KGS
H.C.SCHMIEDING PRODUCE CO., LLC.,
et al.,
Defendants.
H.C.SCHMIEDING PRODUCE CO., LLC.,
Third-party Plaintiff,
vs.
MARK A. RESER, et al.,
Third-party Defendants.
MEMORANDUM AND ORDER
This case is before the court upon the motion for entry of
default
by
third-party
(“Schmieding”).
55(a)
which
plaintiff
H.C.
Schmieding
Produce
Co.
The motion is brought pursuant to FED.R.CIV.P.
provides
that:
“When
a
party
against
whom
a
judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default.”
Here, Schmieding has submitted an affidavit stating that it
filed a third-party complaint on September 30, 2016 which named
Sunterra Produce Traders Inc. (“Sunterra”) as a defendant.
1
The
affidavit further states that Sunterra was served with a copy of
the third-party complaint and summons in California and that the
time for Sunterra to answer or otherwise move with respect to
the complaint expired on October 24, 2016.
Because Sunterra has
not answered or responded to the complaint, Schmieding requests
entry of default.
The court does not have jurisdiction over a defendant who
has not been proper served.
Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 350 (1999).
FED.R.CIV.P. 4(h)(1)
governs the service of process upon a corporation in the United
States.
Rule 4(h)(1) permits service of process in the manner
permitted for serving an individual under FED.R.CIV.P. 4(e)(1)
or “by delivering a copy of the summons and complaint to an
officer,
a
authorized
managing
by
or
appointment
general
or
by
agent,
law
or
to
any
other
receive
agent
service
of
process and - - if the agent is one authorized by statute and
the statute so requires - - by also mailing a copy of each to
the defendant.”
Rule 4(e)(1) allows for service by following
the state law for serving a summons in an action brought in
courts in the state where the district court is located or where
service is made.
The proof of service filed regarding Sunterra (Doc. No. 12)
shows
that
certified
Schmieding
mail
mailed
addressed
to
the
summons
“Sunterra
2
and
Produce
complaint
by
Traders”
in
California and that the mailing was received and signed for by
an agent identified as “Adrianne Q.”1
The federal rules do not
permit service by mail except to the extent permitted in the
state where a district court is located or where process is
See Larsen v. Mayo Med. Ctr., 218 F.3d 863, 868 (8th
served.
Cir.)
cert.
denied,
531
U.S.
1036
(2000);
Dyer
v.
Wal-Mart
Stores, Inc., 318 Fed.Appx. 843, 844 (11th Cir. 2009); Azzawi v.
Kellogg
Brown
and
Root,
2015
WL
6460363
*2
(E.D.Cal.
10/26/2015); Colleton Preparatory Academy, Inc. v. Beazer East,
Inc., 223 F.R.D. 401, 404 (D.S.C. 2004).
The state law in California requires that service upon a
corporation be directed to a specific individual.
Civ.
Pro.
§
416.10;
Azzawi,
Services,
2013
WL
4647550
Enhanced
Recovery
Corp.,
9/1/2010).
allows
effected
*6
supra;
Hidalgo
(S.D.Cal.
2010
WL
by
service
of
certified
process
mail,
by
K.S.A.
Aurora
8/29/2013);
3448508
The law is the same in Kansas.
for
v.
Cal. Code
*3-4
Loan
Watts
v.
(N.D.Cal.
While K.S.A. 60-303
return
receipt
60-304(e)
delivery
requires
that
service on a corporation be performed by serving an officer,
manager, partner or a resident, managing or general agent and
that
“[s]ervice
by
return
receipt
delivery
on
an
officer,
partner or agent must be addressed to the person at the person’s
usual place of business.”
1
This could be incorrect.
Doc. No. 12, p. 3.
Here, the certified mail was not
The name is difficult to make out on the receipt.
3
addressed to the officer, partner or agent at the person’s usual
place of business.
defendant.
King,
Instead, it was addressed to the corporate
This does not satisfy Kansas law. Chambers v. Burger
2016
WL
2848993
*1
(D.Kan.
5/16/2016);
Remmers
v.
Brotherhood of Maintenance of Way Employees Division, 2012 WL
2449887 *2 (D.Kan. 6/27/2012); Porter v. Wells Fargo Bank, 257
P.3d
788,
791
(Kan.App.
2011);
Taylor
ex
rel.
Gibbens
v.
Medicalodges, Inc., 2010 WL 3324408 *3 (Kan.App. 8/20/2010).
When
it
appears
that
service
of
process
has
not
been
properly completed, the court should not enter default.
See
Maryland State Firemen’s Ass’n v. Chaves, 166 F.R.D. 353, 354
(D.Md. 1996); Dahl v. Kanawha Inv. Holding Co., 161 F.R.D. 673,
685
(N.D.Iowa
1995).
Therefore,
for
the
reasons
explained
above, the court shall deny Schmieding’s motion for entry of
default (Doc. No. 43) without prejudice.
IT IS SO ORDERED.
Dated this 7th day of March, 2017, at Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
4
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