Merchants Bonding Company v. Certified Maintenance Company, Inc. et al
MEMORANDUM OPINION. Signed by Judge Paula Xinis on 6/2/2017. (kns, Deputy Clerk)(c/m 6/2/17)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MERCHANTS BONDING COMPANY,
Civil Action No. PX 17-0365
CERTIFIED MAINTENANCE COMPANY,
INC. et al.
Pending is Plaintiff Merchants Bonding Company’s Motion for Reconsideration (ECF
No. 11) and its Motion for Extension of Time (ECF No. 12). The issues are fully briefed and the
Court now rules pursuant to Local Rule 105.6 because no hearing is necessary. For the reasons
that follow, Plaintiff’s Motion for Reconsideration is granted and the Motion for Extension of
Time is denied as moot.
On February 9, 2017, Plaintiff Merchants Bonding Company filed a Complaint against
Defendants Certified Maintenance Company, Inc., Mehdi Naimi-Ezami, and Lynette NaimiEzami seeking reimbursement for losses and damages it allegedly incurred as a result of issuing
surety bonds for Certified Maintenance Company on construction projects in Maryland. Mehdi
and Lynette Naimi-Ezami (the “Individual Defendants”) are the principals of Certified
Plaintiff served Certified Maintenance Company through the Maryland State Department
of Assessments and Taxation (“SDAT”) on February 21, 2017. See ECF No. 5. As explained
below, serving the Individual Defendants proved to be rather difficult. Ultimately, Plaintiff
served the Individual Defendants by leaving a copy of the Summons and Complaint with the
manager of the Individual Defendants’ private mailbox located in Florida pursuant to one of
Florida’s substitute service provisions—Fla. Stat. Ann. § 48.031(6).
The Defendants’ opportunity to respond to the Complaint came and went and so, on April
18, 2017, Plaintiff moved for a clerk’s entry of default against all of the Defendants pursuant to
Rule 55(a) of the Federal Rules of Civil Procedure. See ECF No. 9. The Court granted this
motion in part. See ECF No. 10. It granted Plaintiff’s motion with respect to Certified
Maintenance Company, but denied it with respect to the Individual Defendants for Plaintiff’s
failure to provide evidence that Plaintiff had actually meet Fla. Stat. Ann. § 48.031’s
requirements for proper substitute service of process.
On May 9, 2017, Plaintiff filed a motion requesting that the Court reconsider its Order
denying Plaintiff’s motion for entry of default judgment with respect to the Individual
Defendants. See ECF No. 11. Shortly thereafter, Plaintiff filed a motion for extension of time to
serve the Individual Defendants. See ECF No. 12. Plaintiff filed the latter motion to ensure that it
would have time to serve the Individual Defendants in the event the Court denied Plaintiff’s
motion to reconsider.
STANDARD OF REVIEW
Rule 55(a) of the Federal Rules of Civil Procedure provides that “[w]hen 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.” Rule 55
establishes a two-step process for obtaining a default judgment: the clerk’s entry of default
followed by the entry of default judgment. See Wilson v. Turner, No. ELH-13-3497, 2014 WL
4426126, at *1 (D. Md. Sept. 2, 2014); 10A C. Wright & A. Miller, Federal Practice &
Procedure § 2682 (4th ed.) (“Prior to obtaining a default judgment under either Rule 55(b)(1) or
Rule 55(b)(2), there must be an entry of default as provided by Rule 55(a).”). Entry of default is
thus “merely ‘an interlocutory step that is taken under Rule 55(a) in anticipation of a final
judgment by default under Rule 55(b).’” Phillips v. Weiner, 103 F.R.D. 177, 179 (D. Me. 1984)
(quoting 10 C. Wright, A. Miller & Kane, Federal Practice and Procedure § 2692 at 465 (2d ed.
Motions for reconsideration of an interlocutory order are governed by Federal Rule of
Civil Procedure 54(b)1 and “are not subject to the strict standards applicable to motions for
reconsideration of a final judgment.” Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514
(4th Cir. 2003). Resolution of such a motion is “committed to the discretion of the district court”
and the goal “is to reach the correct judgment under law.” Id. at 515. While the precise standard
governing a motion for reconsideration of an interlocutory order is unclear, courts in this circuit
recognize that Rule 59(e) provides sound guidance. Butler v. Directsat USA, LLC, 307 F.R.D.
445, 449 (D. Md. 2015) (noting that courts frequently look to the standards articulated in Rules
59(a) and 60(b) “for guidance in considering such motions”). Pursuant to Rule 59(e), a district
court may alter or amend a judgment: “(1) to accommodate an intervening change in controlling
law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law
Rule 54(b) provides, in pertinent part:
[A]ny order or other decision . . . that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the action as to any of the claims or parties and
may be revised at any time before the entry of a judgment adjudicating all the claims and all the
parties’ rights and liabilities.
[or] prevent manifest injustice.” U.S. ex rel. Becker v. Westinghouse Savannah River Co., 305
F.3d 284, 290 (4th Cir. 2002) (citations and internal quotation marks omitted). With these
principles in mind, the Court turns to Plaintiff’s motion.
Plaintiff believes that this Court applied the incorrect standard when it held that Plaintiff
failed to effectuate service properly upon the Individual Defendants. It argues that the Court
should have accepted Plaintiff’s signed returns of service as prima facie evidence of valid service
without requiring Plaintiff to provide additional evidence that it complied with Florida’s
substitute service provision. See ECF No. 11 at 3. Alternatively, Plaintiff argues for the first time
that the Individual Defendants contractually waived service and personal jurisdiction pursuant to
the indemnity agreement that they had executed with Plaintiff in connection with the provision of
surety bonds for Defendants’ Maryland construction projects. Id.
As the Court explained above and in its April 25th Memorandum Opinion and Order,
Plaintiff attempted to effectuate service on the Individual Defendants under Section 48.031(6) of
the Florida Statutes, which reads:
If the only address for a person to be served which is discoverable through public
records is a private mailbox, a virtual office, or an executive office or mini suite,
substitute service may be made by leaving a copy of the process with the person
in charge of the private mailbox, virtual office, or executive office or mini suite,
but only if the process server determines that the person to be served maintains a
mailbox, a virtual office, or an executive office or mini suite at that location.
Contrary to Plaintiff’s position, this statute requires more than a signed return of service
to prove that a plaintiff has complied with this substitute service provision. Under Florida law,
Section 48.0361 “only permits substitute service at a private mailbox if (1) it is the only address
discoverable through the public records, and (2) the process server determines that the person to
be served maintains a mailbox at that location.” Clauro Enterprises, Inc. v. Aragon Galiano
Holdings, LLC, 16 So. 3d 1009, 1012 (Fla. Dist. Ct. App. 2009) (emphasis in original) (citations
omitted). Both requirements must be met. Id. Florida law also makes clear “[a]n affidavit [of
service] which merely alleges that the service of process statute has been complied with is
insufficient to meet the proponent’s initial burden of establishing proper service.” Id. (quoting
York Commc’ns, Inc. v. Furst Group, Inc., 724 So. 2d 678, 679 (Fla. Dist. Ct. App. 1999))
(internal quotation marks omitted); cf. Johnston v. Halliday, 516 So. 2d 84, 85 (Fla. Dist. Ct.
App. 1987) (holding that a return of service merely stating that substituted service was effected
on the defendant’s son who was “of suitable age and discretion” was insufficient absent facts
establishing that the process server complied with specific requirements for substituted service).
Thus, in this context, Plaintiff was required to produce evidence that it had met Section
48.031(6)’s statutory requirements to demonstrate that it effectuated proper service of process.
This Plaintiff did not do. Accordingly, the Court did not err by requiring Plaintiff to provide
evidence to ensure it had complied with Florida’s applicable substitute service provision.
Plaintiff’s argument that the Individual Defendants had waived service of process is
equally unavailing. The indemnity agreement states that the Individual Defendants agreed to
“waive personal service of any and all process.” ECF No. 11-1 at 5 (emphasis added). The
waiver clause does not address substitute service of process nor does Plaintiff argue that the
Individual Defendants waived substitute service of process under the indemnity agreement.
Thus, the clause Plaintiff cites is of little help in this context.
Nonetheless, Plaintiff has provided additional information in its motion for
reconsideration to demonstrate that it met Section 48.031(6)’s statutory requirements.
Specifically, Plaintiff attached to the motion the affidavit of its attorney, Michael Stover, which
explains Plaintiff’s efforts to effectuate service of process on the Individual Defendants. See ECF
No. 11-2. Stover affirms that Plaintiff employed numerous process servers who made dozens of
attempts to serve the Individual Defendants at multiple locations. For example, Plaintiff learned
of three possible Maryland addresses for the Individual Defendants in Huntingtown and Prince
Frederick. Id. at 2–3. Process servers were dispatched to each address where they discovered that
the Individual Defendants did not live at any of the residences. Id.
Plaintiff then learned that the Individual Defendants may have relocated to Florida and
discovered two potential addresses for the Individual Defendants in that state. Plaintiff again
dispatched a process server to each location and, again, learned that the Individual Defendants
did not actually reside there. Finally, Plaintiff learned that the Individual Defendants may own a
private mailbox located in Stuart, Florida. A process server arrived at the store and spoke with
the store’s manager who confirmed that Individual Defendants pay for a private mailbox at that
location. The manager also agreed to accept service on the Individual Defendants’ behalf. See
ECF No. 11-2 at 8.
Thus, Stover’s affidavit confirms that the process server verified that the Individual
Defendants maintained a mailbox at the Stuart, Florida location; that the private mailbox “is the
only address discoverable through the public records”; and that the process server left “a copy of
the process with the person in charge of the private mailbox.” Fla. Stat. Ann. § 48.031(6).
Accordingly, and because granting Plaintiff’s motion for clerk’s entry of default as to the
Individual Defendants is “the correct judgment under law,” Am. Canoe Ass’n, 326 F.3d at 515,
Plaintiff’s motion for reconsideration is granted. For this reason, Plaintiff’s motion for extension
of time is denied as moot. A separate Order will follow.
United States District Judge
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