United States of America v. Zen Enterprises, Inc. et al
MEMORANDUM OPINION (c/m to Defendants 10/13/20 sat). Signed by Judge Deborah K. Chasanow on 10/13/2020. (sat, Chambers)
Case 8:19-cv-03294-DKC Document 19 Filed 10/13/20 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA
Civil Action No. DKC 19-3294
ZEN ENTERPRISES, INC., et al.
Pending before the court is Plaintiff’s motion for the entry
ECF No. 18.
Defendants have not responded.
following reasons, the motion for clerk’s entry of default will be
Plaintiff filed this action on November 15, 2019, requesting
the court enter judgment against Defendants for $1,169,746.35 plus
interest representing unpaid employment taxes allegedly owed by
Zen Enterprises, Inc. and Potomac Driving School, Inc.
The government alleges that Defendant Zen
Enterprises, Inc. failed to pay federal employment taxes for its
employees beginning in 2007.
Potomac Driving School, Inc. began
paying the wages of the employees of Zen Enterprises, Inc. in 2011
and thereafter has paid no employment taxes.
Benjamin and Zenaida Frasier as Defendants because they operate
Case 8:19-cv-03294-DKC Document 19 Filed 10/13/20 Page 2 of 5
both Zen Enterprises, Inc. and Defendant Potomac Driving School,
Motion for Clerk’s Entry of Default
Standard of Review
Under Federal Rule of Civil Procedure 55(a), “[w]hen a party
against whom a judgment for affirmative relief is sought has failed
affidavit or otherwise, the clerk must enter the party’s default.”1
“It is axiomatic that service of process must be effective under
the [Fed.R.Civ.P.] before a default . . . may be entered against
Md. State Firemen’s Ass’n v. Chaves, 166 F.R.D.
353, 354 (D.Md. 1996).
Plaintiff bears the burden of establishing
that service of process was effective.
Ayres v. Ocwen Loan
Servicing, LLC, 129 F.Supp.3d 249, 261 (D.Md. 2015).
Defendants for their failure to plead or otherwise defend.
Enterprises, Inc. and Potomac Driving School, Inc. were served on
A default judgment is a two-step process: first, the clerk
enters a party’s default and then a court determines whether
judgment will be entered.
Case 8:19-cv-03294-DKC Document 19 Filed 10/13/20 Page 3 of 5
January 16, 2020, by serving the State Department of Assessments
certified mail on February 7, 2020, and Defendant Zenaida Frasier
was served on February 4, 2020, also by certified mail.
Rule 4 allows service on an individual or corporation by
following state law for service.
Fed.R.Civ.P. 4(e)(1), (h)(1)(A).
The Maryland Rules permit service “by mailing to the person to be
served a copy of the summons, complaint, and all other papers filed
with it by requesting: ‘Restricted Delivery—show to whom, date,
address of delivery.’”
Md. Rule 2-121(a)(3).
Service on an
individual must be made “by serving the individual or an agent
authorized by appointment or by law to receive service of process
for the individual.”
Md. Rule 2-124(a).
Service on a corporation must be made by “serving its resident
agent, president, secretary, or treasurer.”
Md. Rule 2-124(d).
With respect to the corporate defendants, Zen Enterprises, Inc.
and Potomac Driving School, Inc., Plaintiff sent service of process
to the State Department of Assessments and Taxation (“SDAT”)
pursuant to the substitute service provisions of Md. Rule 2-124(o).
That rule reads:
(o) Substituted Service Upon State Department of
Assessments and Taxation. Service may be made upon a
corporation, limited partnership, limited liability
Case 8:19-cv-03294-DKC Document 19 Filed 10/13/20 Page 4 of 5
partnership, limited liability company, or other entity
required by statute of this State to have a resident
agent by serving two copies of the summons, complaint,
and all other papers filed with it, together with the
requisite fee, upon the State Department of Assessments
and Taxation if (i) the entity has no resident agent;
(ii) the resident agent is dead or is no longer at the
address for service of process maintained with the State
Department of Assessments and Taxation; or (iii) two
good faith attempts on separate days to serve the
resident agent have failed.
Rule 2-124 - Process-Persons to be Served, Md. R. Civ. P. Cir. Ct.
Service on Potomac Driving School, Inc. and Zen Enterprises,
Inc. was first attempted by Torri’s Legal Services when it went to
the address in South Carolina for Zenaida Frasier as Resident Agent
for both corporations on December 26, and December 30, 2019.
then also attempted service at an address in Silver Spring,
Maryland, on January 8, 9, and 14, 2020.
(ECF No. 11).
attempts were unsuccessful, service was then effected via the State
Department of Assessments and Taxation.
In addition, Defendants
additional time to respond to the complaint on February 27, 2020
(ECF No. 12) and again on April 27, 2020 (ECF No. 16).
evidenced by Defendants’ requests for additional time, actual
notice was received.
“When the process gives the defendant actual
Case 8:19-cv-03294-DKC Document 19 Filed 10/13/20 Page 5 of 5
notice of the pendency of the action, the rules, in general, are
entitled to a liberal construction.”
Armco, 733 F.2d at 1089.
Defendants were granted an extension to July 6, 2020, to
respond to the complaint herein.
(ECF No. 17).
a motion for clerk’s entry of default on July 23, 2020.
Defendants have not responded and have missed their deadlines to
answer by nearly three (3) months.
As such, clerk’s entry of
default is warranted and Plaintiff’s motion for clerk’s entry of
default will be granted.
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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