Mutual of America Life Insurance Company v. Smith et al
Filing
74
MEMORANDUM OPINION (c/m to Defendants Smith and Seymour 2/7/18 sat). Signed by Judge Deborah K. Chasanow on 2/7/2018. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MUTUAL OF AMERICA LIFE INSURANCE
COMPANY
:
v
:
Civil Action No. DKC 16-1125
:
NADINE SMITH, et. al.
:
MEMORANDUM OPINION
Presently
statutory
pending
interpleader
and
ready
action
for
are
a
resolution
motion
for
in
this
discharge,
injunction, and attorneys’ fees and costs filed by Plaintiff
Mutual of America Life Insurance Company (“Plaintiff” or “Mutual
of America”) (ECF No. 69) and a motion for entry of default
filed
by
Plaintiff
(ECF
No.
71).
hearing being deemed necessary.
The
court
now
Local Rule 105.6.
rules,
no
For the
following reasons, the motions will be denied.
I.
Background
On
action,
April
15,
pursuant
to
2016,
28
Plaintiff
U.S.C.
§
filed
1335,
to
this
interpleader
resolve
competing
claims over the amounts payable pursuant to annuity contracts
issued by Plaintiff and held by Verneda Pigott.
(ECF No. 1).
The only Defendant who has not responded or been defaulted in
this case is the Estate of Sylvia Coleman.
On August 18, 2017,
Plaintiff notified the court that Thomas Coleman was appointed
administrator for the Estate of Sylvia Coleman.
(ECF No. 57-1).
On October 11, Plaintiff filed an affidavit that service was
made
on
Mr.
Coleman
on
September
29,
2017,
at
his
mailing
address, by posting the initial pleading and summons on the
front door and mailing a copy of the same.1
October
18,
Mutual
of
America
filed
the
(ECF No. 68).
pending
motion
discharge, injunction, and attorneys’ fees and costs.
On
for
(ECF No.
69).
To
date,
responded.
Defendant
Estate
of
Sylvia
Coleman
has
not
The court issued an order directing Plaintiff to
file and serve by mail on the Estate of Sylvia Coleman a motion
for
entry
explanation
of
as
default
to
why
and
the
to
provide
method
of
the
court
service
Plaintiff was appropriate and sufficient.
with
an
utilized
by
(ECF Nos. 70; 71).
Plaintiff filed the pending motion for entry of default against
Defendant Estate of Sylvia Coleman on November 20 (ECF No. 71),
and responded on January 12, 2018, to the court’s request for an
explanation as to why service on the Estate of Sylvia Coleman
was appropriate and sufficient (ECF No. 73).
1
The certificate of appointment of administrator submitted
to the court by Plaintiff provides a mailing address for Thomas
Coleman in Saint Albans, New York (ECF No. 57-1), which is the
address Plaintiff’s private process server used to attempt
service.
2
II.
Motion for Entry of Default
Pursuant
to
Fed.R.Civ.P.
55(a),
“[w]hen
a
party
against
whom a judgment for affirmative relief is sought has failed to
plead
or
otherwise
defend,
entered by the court.”
of
Am.,
Inc.,
687
that
a
enter
shown
default
the
by
Although this rule refers to entry of default by the
well-established
must
is
default.”
is
clerk
failure
or
“it
the
that
affidavit
clerk,
otherwise,
and
also
party’s
may
be
Breuer Elec. Mfg. Co. v. Toronado Sys.
F.2d
182,
185
(7th
Cir.
1982).
“It
is
axiomatic that service of process must be effective under the
[Fed.R.Civ.P.] before a default . . . may be entered against a
defendant.”
353,
354
Md. State Firemen’s Ass’n v. Chaves, 166 F.R.D.
(D.Md.
1996).
Plaintiff
bears
the
establishing that service of process was effective.
burden
of
Ayres v.
Ocwen Loan Servicing, LLC, 129 F.Supp.3d 249, 261 (D.Md. 2015).
Plaintiff asserts that “service was properly effectuated
under [New York Civil Practice Law and Rule (“N.Y. C.P.L.R.”)]
308 and Fed.R.Civ.P. 4(e) and that the private process server’s
Affidavit
and
Declaration
.
service.”
(ECF No. 73 ¶ 11).
.
.
serve
as
adequate
proof
of
Pursuant to Fed.R.Civ.P. 4(e)(1),
a plaintiff may serve an individual in an action brought in
federal district court by following state law for serving a
summons in the state where the district court is located or
where service is made.
Plaintiff does not argue that service
3
was properly effectuated under Maryland law, and such is not the
case.
See Md.Code Ann. 2-121(a).
Thus, service could only be
properly effectuated under New York law.
N.Y. C.P.L.R. 308
provides that an individual may be served “(1) by delivering the
summons within the state to the person to be served; or (2) by
delivering the summons within the state to a person of suitable
age and discretion at the actual place of business, dwelling
place or usual place of abode of the person to be served and by
either mailing the summons to the person at his or her last
known residence or . . . actual place of business[.]”
C.P.L.R.
308(4)
provides
that
an
individual
may
be
N.Y.
served,
“where service under paragraphs one and two cannot be made with
due diligence, by affixing the summons to the door of either the
actual place of business, dwelling place or usual place of abode
within
the
state
of
the
person
to
be
served
and
by
either
mailing the summons to such person at his or her last known
residence or by mailing the summons by first class mail to the
person to be served at his or her actual place of business[.]”
(emphasis added).
This alternate method of service is commonly
referred to as “nail and mail” service.
Greene Major Holdings,
LLC v. Trailside at Hunter, LLC, 148 A.D.3d 1317, 1320 (N.Y.
App. Div. 2017).
While the precise manner in which due
diligence is to be accomplished is “not
rigidly prescribed[,]” the requirement that
4
due diligence be exercised “must be strictly
observed, given the reduced likelihood that
a summons served pursuant to [N.Y. C.P.L.R.
308(4)]
will
be
received[.]”
“What
constitutes due diligence is determined on a
case-by-case basis, focusing not on the
quantity
of
the
attempts
at
personal
delivery, but on their quality[,]” and the
plaintiff,
who
bears
the
burden
of
establishing that personal jurisdiction over
the defendant was acquired, must show “that
the process server made genuine inquiries
about the defendant’s whereabouts and place
of employment[.]”
Id. at 1320-21 (internal citations omitted).
Here, the process server attempted to serve Mr. Coleman at
a particular address in Saint Albans, New York, on Saturday,
September 16, 2017, at 7:19 a.m. and Friday, September 22, 2017,
at 8:54 a.m. before using “nail and mail” service on Friday,
September 29, 2017, at 12:51 p.m.
(ECF No. 73-2, at 3).
attempts
Coleman
to
serve
process
on
Mr.
–
one
being
Two
on
a
weekday when Mr. Coleman could be expected to be away from home
– do not satisfy the due diligence requirement.
Compare Greene,
148 A.D.3d at 1321 (holding that the trial court did not abuse
its discretion in finding that the plaintiff did not establish
due diligence when the process server attempted to serve the
defendant at a particular residence on three occasions, all of
which occurred on weekdays and two of which occurred during
hours
that
the
defendant
could
be
expected
to
be
at
or
in
transit to work, before using “nail and mail” service); with
5
Estate
of
Waterman
v.
Jones,
843
N.Y.S.2d
462,
464-65
(N.Y.App.Div. 2007) (“‘[D]ue diligence’ may be satisfied with a
few (three) visits on different occasions and at different times
to
the
defendant’s
defendant
could
residence
reasonably
or
of
business
expected
be
place
to
be
when
found
at
the
such
location at those times.”); Johnson v. Waters, 738 N.Y.S.2d 369,
370
(N.Y.App.Div.
2002)
(the
plaintiff
satisfied
the
due
diligence requirement when the process server attempted to serve
the defendant three times at his residence – once during normal
working
hours,
Saturday
once
morning
–
on
a
Wednesday
before
using
evening,
“nail
and
and
once
mail”
on
a
service);
Lemberger v. Khan, 794 N.Y.S.2d 416, 416 (N.Y.App.Div. 2005)
(three attempts by the plaintiffs’ process server to serve the
defendant
at
his
requirement);
residence
Brunson
(N.Y.App.Div.
1993)
v.
(mem.)
satisfied
Hill,
(two
the
595
due
diligence
N.Y.S.2d
attempts
314,
sufficient
335
when
the
attempts were made during a time when a working person might
reasonably have been expected to be at home).
Additionally,
Plaintiff has not shown that the process server made genuine
inquiries
about
employment.
establishing
York
law
however,
Mr.
Coleman’s
whereabouts
or
his
place
of
Therefore, Plaintiff has not met its burden of
that
service
the
Estate
on
does
not
was
of
properly
Sylvia
necessitate
effectuated
Coleman.
dismissal.
6
under
Such
Ngabo
v.
New
failure,
Le
Pain
Quotidien, No. DKC-11-0096, 2011 WL 978654, at *2 (D.Md. March
17, 2011); see also Fidelity & Guar. Life Ins. Co. v. Freeman,
94
F.Supp.2d
689,
691
(D.Md.
2000)
(noting
that
allowing
dismissal would be contrary to the purposes of the interpleader
statute because it would not distribute the annuity funds at
issue).
Therefore, the court will deny Plaintiff’s motion for
entry of default and provide Plaintiff with another opportunity
to
effect
Coleman.
service
of
Plaintiff’s
process
on
Defendant
motion
for
discharge,
Estate
of
Sylvia
injunction,
and
attorneys’ fees and costs will also be denied at this time.
Plaintiff may refile the motion once service has been effected
on the Estate of Sylvia Coleman.
III. Conclusion
For the foregoing reasons, the motion for entry of default
and the motion for discharge, injunction, and attorneys’ fees
and costs filed by Plaintiff Mutual of America Life Insurance
Company will be denied.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
7
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