Mutual of America Life Insurance Company v. Smith et al
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
Civil Action No. DKC 16-1125
NADINE SMITH, et. al.
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
hearing being deemed necessary.
Local Rule 105.6.
following reasons, the motions will be denied.
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
address, by posting the initial pleading and summons on the
front door and mailing a copy of the same.1
(ECF No. 68).
discharge, injunction, and attorneys’ fees and costs.
The court issued an order directing Plaintiff to
file and serve by mail on the Estate of Sylvia Coleman a motion
Plaintiff was appropriate and sufficient.
(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).
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
Motion for Entry of Default
whom a judgment for affirmative relief is sought has failed to
entered by the court.”
Although this rule refers to entry of default by the
Breuer Elec. Mfg. Co. v. Toronado Sys.
axiomatic that service of process must be effective under the
[Fed.R.Civ.P.] before a default . . . may be entered against a
Md. State Firemen’s Ass’n v. Chaves, 166 F.R.D.
establishing that service of process was effective.
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
(ECF No. 73 ¶ 11).
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
was properly effectuated under Maryland law, and such is not the
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[.]”
“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
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[.]”
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
due diligence be exercised “must be strictly
observed, given the reduced likelihood that
a summons served pursuant to [N.Y. C.P.L.R.
constitutes due diligence is determined on a
case-by-case basis, focusing not on the
delivery, but on their quality[,]” and the
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
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).
weekday when Mr. Coleman could be expected to be away from home
– do not satisfy the due diligence requirement.
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
transit to work, before using “nail and mail” service); with
(N.Y.App.Div. 2007) (“‘[D]ue diligence’ may be satisfied with a
few (three) visits on different occasions and at different times
location at those times.”); Johnson v. Waters, 738 N.Y.S.2d 369,
diligence requirement when the process server attempted to serve
the defendant three times at his residence – once during normal
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
attempts were made during a time when a working person might
reasonably have been expected to be at home).
Plaintiff has not shown that the process server made genuine
Therefore, Plaintiff has not met its burden of
Quotidien, No. DKC-11-0096, 2011 WL 978654, at *2 (D.Md. March
17, 2011); see also Fidelity & Guar. Life Ins. Co. v. Freeman,
dismissal would be contrary to the purposes of the interpleader
statute because it would not distribute the annuity funds at
Therefore, the court will deny Plaintiff’s motion for
entry of default and provide Plaintiff with another opportunity
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.
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.
DEBORAH K. CHASANOW
United States District Judge
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