Cupps et al v. Torus Specialty Insurance Company et al

Filing 44

ORDER AND REASONS denying 42 Motion for Entry of Default. Signed by Judge Jane Triche Milazzo on 4/27/2015. (my)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DELLA CUPPS, ET AL.

CIVIL ACTION

VERSUS

NO. 14-615

TORUS SPECIALTY INSURANCE CO. ET AL.

SECTION "H"

ORDER AND REASONS
Before the Court is Plaintiffs' Motion for Entry of Default as to The
Cochran Firm, P.C. (R. Doc. 42) and Defendant Torus Specialty Insurance
Company's Response in Opposition (R. Doc. 43). For the following reasons,
Plaintiff's Motion is DENIED.
BACKGROUND
On October 21, 2014, Plaintiffs filed a Second Supplemental and Amended
Complaint adding The Cochran Firm, P.C. ("TCF"), an Alabama corporation, as
a defendant in this matter. Plaintiffs attempted service on TCF and filed an
executed summons into the record on March 13, 2015. Because TCF failed to
appear in the litigation, Plaintiffs filed the instant Motion for Entry of Default
1

on April 17, 2015, asking this Court to enter default against TCF.
Subsequently, another defendant—Torus Specialty Insurance Company
("Torus")—filed a response opposing the entry of default against TCF. Torus
points out that the summons filed by Plaintiffs shows that service was made on
Irish Edwards at 430 West Main Street. Torus argues that this service was
improper because Irish Edwards is not TCF's registered agent, nor does the
location of service match the registered agent's address. Indeed, according to the
Alabama Secretary of State website, of which this Court takes judicial notice,1
TCF's registered agent is J.K. Givens at 163 West Main Street in Dothan,
Alabama. Plaintiffs have not elaborated on Irish Edward's identity or relation
to TCF.
LAW AND ANALYSIS
"The Federal Rules of Civil Procedure provide that a corporation must be
served either 'by delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent authorized by
appointment or by law to receive service of process' or by following the dictates
of applicable state law regarding service of an individual."2 Service may be made
pursuant to the state law of the forum or place of service.3 In Louisiana, the
forum state, service on a corporation must be made by personal service on any

1

See In re Katrina Canal Breaches Consol. Lit., 533 F. Supp. 2d 615, 632 (E.D. La.

2008).
2

Flander v. Kforce, Inc., 526 F. App'x 364, 368 (5th Cir. 2013); Fed. R. Civ. P. 4.

3

Fed. R. Civ. P. 4(e)(1).

2

one of the corporation's agents for service of process.4 In Alabama, the state of
service, service may be made on a corporation by serving an officer or any agent
authorized by appointment or by law to receive service of process.5
Accordingly, in order to effect proper service, Plaintiffs must have served
a registered agent or officer of TCF. Plaintiff has not indicated that Irish
Edwards is either. "Before a default can be entered, the court must have
jurisdiction over the party against whom the judgment is sought, which also
means that the party must have been effectively served with process."6 Because
Plaintiff has not convinced this Court that its service on TCF was proper, its
motion for entry of default against TCF is denied.
CONCLUSION
For the foregoing reasons, Plaintiffs' Motion is DENIED.

New Orleans, Louisiana, this 27th day of April, 2015.

___________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
4

La. Code Civ. Proc. art. 1261.

5

Ala. R. Civ. P. 4.

6

10A ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE § 2682 (3d
ed.); see Finley v. Kondaur Capital Corp., 909 F. Supp. 2d 969, 984 (W.D. Tenn. 2012) (refusing
to enter default when Plaintiff provided no proof of service).

3