Board of Trustees of the International Union of Operating Engineers Local 37 Benefit Fund v. Chesapeake Crane Service, Inc. et al
Filing
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MEMORANDUM AND ORDER granting Daniel T. Donatellis 22 Motion for Relief from Judgment; vacating 17 Default Judgment as to Donatelli; setting deadline for response to complaint. Signed by Judge George Levi Russell, III on 3/30/2016. (dass, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
Chambers of
George L. Russell, III
United States District Judge
101 West Lombard Street
Baltimore, Maryland 21201
410-962-4055
March 30, 2016
MEMORANDUM TO COUNSEL RE:
Board of Trustees of the International Union of
Operating Engineers, Local 37 Benefit Funds v.
Chesapeake Crane Service, Inc., et al.
Civil Action No. GLR-13-1245
Dear Counsel:
Pending before the Court is Defendant Daniel T. Donatelli’s Motion for Relief from
Judgment. (ECF No. 22). The Motion is ripe for disposition. The Court, having reviewed the
Motion and Opposition thereto (ECF No. 25), finds no hearing necessary pursuant to Local Rule
105.6 (D.Md. 2014). For the reasons outlined below, the Motion will be granted.
The background facts and procedural history are briefly outlined in the Court’s August 7,
2013 Letter Order. (See ECF No. 11). In sum, the Board sought unpaid contributions that
Defendants Chesapeake Crane Service, Inc. (“Chesapeake”) and Donatelli owe pursuant to a
series of collective bargaining agreements. The Clerk issued Summonses (ECF No. 2) and, on
May 7, 2013, Plaintiff Board of Trustees of the International Union of Operating Engineers,
Local 37 Benefits Funds’ (the “Board”) filed Return of Service as to Chesapeake (the
“Chesapeake Return of Service”) (ECF No. 3). The Chesapeake Return of Service stated the
process server mailed the Summons and Complaint to Donatelli as resident agent of Chesapeake
by certified mail, restricted delivery, and included the return receipt signed by “Dan Donatelli”
on May 3, 2013. 1 (Id.).
On July 8, 2013, the Board filed a Request for Entry of Default as to both Defendants.
(ECF No. 8). On July 25, 2013, counsel for the Board filed an affidavit stating Donatelli was
also served individually by certified mail, restricted delivery (ECF No. 9), and attached a copy of
the return receipt signed by “Dan Donatelli” on May 3, 2013. (ECF No. 9-2). On July 26, 2013,
the Clerk entered an Order of Default as to both Defendants for failure to respond to the
Complaint. (ECF No. 10). On September 5, 2013, the Board filed a Motion for Default
Judgment (ECF No. 15), which the Court granted on September 23, 2013 (ECF No. 17). On
October 15, 2015, Donatelli filed a Motion for Relief from Judgment. (ECF No. 22). The Board
filed an Opposition to the Motion on December 2, 2015. (ECF No. 25).
Federal Rule of Civil Procedure 55(c) states a court may set aside an entry of default
judgment under Rule 60(b). Generally, to support a motion under Rule 60(b), the movant must
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The Court notes Plaintiff failed to file a proof of service for Donatelli. Instead, Plaintiff
filed two copies of the return receipt for Chesapeake. (ECF Nos. 4, 4-1).
make an initial showing of “timeliness, a meritorious defense, a lack of unfair prejudice to the
opposing party, and exceptional circumstances.” Haley Paint Co. v. E.I. Dupont De Nemours &
Co., No. RDB-10-0318, 2012 WL 1145027, at *2 (D.Md. Apr. 3, 2012) (quoting Hale v. Belton
Assoc., Inc., 305 F.App’x 987, 988 (4th Cir. 2009)). When making a motion under Rule 60(b),
the movant “must clearly establish the grounds therefor to the satisfaction of the district court,”
and such grounds “must be clearly substantiated by adequate proof.” In re Burnley, 988 F.2d 1,
3 (4th Cir. 1992) (citations omitted). A Rule 60(b)(4) Motion may be brought to set aside a void
judgment at any time. Garcia Fin. Grp., Inc. v. Va. Accelerators Corp., 3 F.App’x 86, 88 (4th
Cir. 2001). “Moreover, a movant claiming relief under Rule 60(b)(4) need not establish a
meritorious defense.” Id.
Donatelli argues the Default Judgment should be set aside under Rule 60(b)(4) because
the Judgment is void due to the Court’s lack of personal jurisdiction. Specifically, Donatelli
states he was not properly served with process under Rule 4. Rule 4 provides that an individual
may be served by (1) following the state law for serving a summons in a court of general
jurisdiction in the state where the district court is located; (2) delivering a copy of the summons
and the complaint to the individual personally; (3) leaving a copy of each at the individual’s
dwelling or usual place of abode; or (4) delivering a copy of each to an agent authorized to
receive service of process for the individual. Fed.R.Civ.P. 4(e). Under Maryland law, an
individual may also be personally served by mailing a copy of the summons and complaint by
certified mail requesting: “Restricted Delivery—show to whom, date, address of delivery.” Md.
Rule 2-121(a) (West 2016); see Fed.R.Civ.P. 4(e)(1). When service is made by certified mail,
the individual making service must file with the court the original return receipt, bearing the
defendant’s signature, or an authorized agent’s signature, as proof of service. Md. Rule 2126(a). If service is made by an individual other than a sheriff, the individual must file proof
under affidavit that includes the name, address, and telephone number of the affiant and a
statement that the affiant is of the age of 18 or over. Md. Rule 2-126(a)(2). The contents of an
affidavit must be “affirmed under the penalties of perjury to be true.” Md. Rule 1-202(b) (West
2016). Failure to prove service, however, does not affect the validity of the service. Md. Rule 2126(g); Fed.R.Civ.P. 4(l)(3).
“A proper return of service is prima facie evidence of valid service of process” and “a
mere denial of service is not sufficient” to rebut the presumption of validity. Wilson v. Md.
Dep’t of Env’t, 92 A.3d 579, 587 (Md.Ct.Spec.App. 2014) (citing Pickett v. Sears, Roebuck &
Co., 775 A.2d 1218, 1227 (Md. 2001)). The denial must be supported by “corroborative
evidence by independent, disinterested witnesses.” Id. (quoting Ashe v. Spears, 284 A.2d 207,
210 (Md. 1971)); see also Ashe, 284 A.2d at 210 (citing Sarlouis v. Firemen’s Ins. Co., 45 Md.
241, 244 (1876) (“This is because the affirmative testimony of the official process server acting
in the regular routine of duty without a motive to misrepresent must be preferred to the negative
evidence of one claiming not to have been served, either for reasons of public policy or as a
matter of probability.”).
The Chesapeake Return of Service included the return receipt with Donatelli’s signature
and the process server’s statement affirmed under the penalties of perjury. (ECF No. 3).
Regarding service on Donatelli individually, the Board only filed a return receipt with
Donatelli’s signature and did not include the process server’s affidavit. (ECF Nos. 4, 4-1).
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Donatelli states in his affidavit that he did not sign the return receipts and did not authorize
anyone to sign the receipts on his behalf. (ECF No. 22-1). The Court finds that the Chesapeake
Return of Service is prima facie evidence of valid service on Donatelli as resident agent of
Chesapeake and his uncorroborated denial is not sufficient to rebut the presumption of validity.
Though the Board failed to file a proper return of service as to Donatelli individually, such a
failure does not invalidate service on Donatelli. Nevertheless, because Donatelli has challenged
the validity of service, the burden is on the Board to establish that service was valid. Ransom v.
Nationstar Mortg. LLC, No. GJH-15-1647, 2016 WL 1064454, at *2 (D.Md. Mar. 14, 2016).
The Board relies on the return receipt with Donatelli’s signature (ECF No. 9-2), but does not
provide any additional evidence demonstrating valid service, such as an affidavit from the
process server. Accordingly, the Court finds that the Board has failed to meet its burden of
establishing the validity of service on Donatelli individually.
The Board argues, even if it failed to make proper service, Donatelli waived his right to
assert his personal jurisdiction defense under Rule 12(h)(1) because he failed to contest personal
jurisdiction after receiving notice. 2 “Rule 12(h) contemplates an implied waiver of a personal
jurisdiction defense by defendants who appear before a court to deny the allegations of a
complaint, but who fail to make personal jurisdiction objections at the time of their appearance.”
Foster v. Arletty 3 Sarl, 278 F.3d 409, 414 (4th Cir. 2002). Donatelli did not appear in this
action prior to filing the pending Motion and, as a result, has not waived his personal jurisdiction
defense.
“Generally, when service of process gives the defendant actual notice of the pending
action, the courts may construe Rule 4 liberally.” Ransom, 2016 WL 1064454, at *2 (quoting
O’Meara v. Waters, 464 F.Supp.2d 474, 476 (D.Md. 2006)). “[E]very technical violation of the
rule or failure of strict compliance may not invalidate the service of process. But the rules are
there to be followed, and plain requirements for the means of effecting service of process may
not be ignored.” Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir.
1984). When a default judgment has been issued without valid service of process, a court is
without personal jurisdiction over the defendant and the judgment is void. Id. While it is clear
Donatelli received actual notice of the action when he signed the return receipt as Chesapeake’s
resident agent, the Board has failed to demonstrate the validity of service on Donatelli
individually. As such, the Court finds that it did not have personal jurisdiction over Donatelli
and the default judgment is void. Accordingly, the Court will grant Donatelli’s Motion and
vacate the Default Judgment as to Donatelli.
For the foregoing reasons, Donatelli’s Motion for Relief from Judgment (ECF No. 22) is
GRANTED. The Default Judgment (ECF No. 17) is VACATED as to Donatelli. Donatelli shall
file a response to the Complaint (ECF No. 1) within twenty-one days of the date of this
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The Board also argues the Motion is untimely; however, a motion to vacate for a void
judgment pursuant to Rule 60(b)(4) can be made at any time. Garcia Fin. Grp., Inc. v. Va.
Accelerators Corp., 3 F.App’x 86, 88, 89 n.3 (4th Cir. 2001) (“[T]here is no time limitation to be
applied to a Rule 60(b)(4) motion, because a judgment that is “void” may be attacked at any
time.”).
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memorandum. Despite the informal nature of this memorandum, it shall constitute an Order of
the Court and the Clerk is directed to docket it accordingly.
Very truly yours,
/s/
________________________
George L. Russell, III
United States District Judge
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