Trustees of the National Electrical Benefit Fund v. JCA Electric, LLC

Filing 6

MEMORANDUM and ORDER DENYING #5 motion for the entry of default and GRANTING Plaintiffs 30 days to demonstrate either that prior service was effective or to effect new service upon Defendant and to provide proof that service has been effected. Signed by Judge Deborah K. Chasanow on 9/25/2024. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TRUSTEES OF THE NATIONAL
ELECTRICAL BENEFIT FUND
v.

:
:
:

Civil Action No. DKC 24-2297

:

JCA ELECTRIC, LLC

:
MEMORANDUM and ORDER

Trustees of the National Electrical Board Fund (“Plaintiffs”)
filed a complaint against JCA Electric, LLC (“Defendant” or “JCA”)
on August 8, 2024, alleging that Defendant was delinquent in its
contributions owed to Plaintiffs under the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1132(a)(3),
1145.

(ECF No. 1).

On August 27, 2024, Plaintiffs filed an Affidavit of Service
stating that service was effected upon JCA by serving Jessica
Vanthof (“Ms. Vanthof”), the wife of JCA’s resident agent Jeremy
L. Vanthof (“Mr. Vanthof”).

(ECF No. 4).

When JCA failed to

respond within the requisite time period, Plaintiffs filed a motion
for clerk’s entry of default on September 11, 2024.

(ECF No. 5).

Under Federal Rule of Civil Procedure 55(a), default must be
entered “[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.”

Proper service of

process is a prerequisite to the entry of default.

Md. State

Firemen’s Assoc. v. Chaves, 166 F.R.D. 353, 354 (D.Md. 1996)(“It
is axiomatic that service of process must be effective under the
Federal Rules of Civil Procedure before a default . . . may be
entered against a defendant.”)

Plaintiffs bear 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).
Under Rule 4 of the Federal Rules of Civil Procedure, a
corporation, partnership, or other incorporated association in a
judicial district of the United States must be served either: (A)
by “following state law for serving a summons in an action brought
in courts of general jurisdiction in the state where the district
court is located or where service is made,” or (B) “by delivering
a copy of the summons and of the complaint to an officer, a managing
or general agent, or any other agent authorized by appointment or
by law to receive service of process.”
This

action

is

in

Maryland,

Fed.R.Civ.P. 4(h)(1).
and

service

was

made

at

Defendant’s address in Indiana, so under Fed.R.Civ.P. 4(h)(1),
Plaintiffs must show that service was proper under either Maryland,
Indiana, or federal law. Under Maryland law, service is made on a
limited liability company “by serving its resident agent.”
Rules 2-124(h), 3-124(h).

Md.

“If the limited liability company has

no resident agent or if a good faith attempt to serve the resident
agent has failed, service may be made upon any member or other
person expressly or impliedly authorized to receive service of
process.”

Md. Rules 2-124(h), 3-124(h).
2

Here, Plaintiffs have neither served JCA’s registered agent,
Mr. Vanthof, nor have they shown a “good faith attempt” to serve
him.

Although Plaintiffs served Ms. Vanthof, under Maryland law,

“[t]he authority to effect service of process by ‘leaving copies
thereof at the . . . dwelling house or usual place of abode with
some person of suitable age and discretion then residing therein’
only

applies

to

service

of

individuals,

corporate resident agents or managing agents.”

not

Flores v. Env't

Tr. Sols., Inc., No. 15-3063-PWG, 2018 WL 2237127, at *7 (D.Md.
May 16, 2018) (quoting Brown v. Am. Insts. For Rsch., 487 F.Supp.
2d 613, 616 (D.Md. 2007)).

Therefore, Plaintiffs’ service appears

to be insufficient under Maryland law.
Plaintiffs’ service also appears to be improper under Indiana
law.

Under Indiana law, to serve process on a represented entity,

a plaintiff must serve the “registered agent,” or if there is no
registered agent or after “reasonable diligence,” the registered
agent

cannot

be

served,

plaintiff

registered or certified mail.
(2018).

can

serve

the

entity

by

Ind. Code § 23-0.5-4-10(a)-(b)

Additionally, if process “cannot be served on an entity

under subsection (a) or (b), service may be made by handing a copy
to the individual in charge of any regular place of business or
activity . . . .”
Trial

Rules

Ind. Code § 23-0.5-4-10(c) (2018).

provide

that

service

can

also

be

The Indiana

made

“upon

an

executive officer” of an organization, or upon a showing that
service cannot be made according to these rules, “by leaving a
3

copy

of

the

summons

and

complaint

at

any

office

of

such

organization located within this state with the person in charge
of such office.”

Ind. R. Trial P. 4.6.

Here, Plaintiffs have neither served JCA’s registered agent,
nor

shown

they

cannot

do

so

after

“reasonable

diligence.”

Additionally, although Plaintiffs identify Ms. Vanthof as a “CoOwner” on the affidavit of service (ECF No. 4), Ms. Vanthof is not
listed on Indiana’s business register, and in any event, a coowner is not an “executive officer.”
Accordingly, it is this 25th day of September, 2024, by the
United States District Court for the District of Maryland, ORDERED
that:
1.

Plaintiffs’

motion

for

the

entry

of

default

as

to

Defendant JCA Electric, LLC (ECF No. 5) BE, and the same hereby
IS, DENIED;
2.

Plaintiffs ARE GRANTED thirty (30) days from the date of

this Order either to demonstrate that prior service was effective
or to effect new service upon Defendant JCA Electric, LLC and to
provide proof that service has been effected; and
3.

The Clerk will transmit copies of this Order to counsel

of record.
/s/
DEBORAH K. CHASANOW
United States District Judge

4