Reser's Fine Foods, Inc. v. H.C. Schmieding Produce Company, LLC et al
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.,
Case No. 16-4150-SAC-KGS
H.C.SCHMIEDING PRODUCE CO., LLC.,
H.C.SCHMIEDING PRODUCE CO., LLC.,
MARK A. RESER, et al.,
MEMORANDUM AND ORDER
This case is before the court upon the motion for entry of
The motion is brought pursuant to FED.R.CIV.P.
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.
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).
governs the service of process upon a corporation in the United
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
process and - - if the agent is one authorized by statute and
the statute so requires - - by also mailing a copy of each to
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)
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
Stores, Inc., 318 Fed.Appx. 843, 844 (11th Cir. 2009); Azzawi v.
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.
The law is the same in Kansas.
While K.S.A. 60-303
service on a corporation be performed by serving an officer,
manager, partner or a resident, managing or general agent and
partner or agent must be addressed to the person at the person’s
usual place of business.”
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.
addressed to the officer, partner or agent at the person’s usual
place of business.
Instead, it was addressed to the corporate
This does not satisfy Kansas law. Chambers v. Burger
Brotherhood of Maintenance of Way Employees Division, 2012 WL
2449887 *2 (D.Kan. 6/27/2012); Porter v. Wells Fargo Bank, 257
Medicalodges, Inc., 2010 WL 3324408 *3 (Kan.App. 8/20/2010).
properly completed, the court should not enter default.
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,
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
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