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