Allstate Indemnity Company v. Bass
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion to Set Aside Default 16 is GRANTED. Signed by District Judge John A. Ross on 6/18/14. (JWD)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ALLSTATE INSURANCE COMPANY,
Case No. 4:11-CV-1910-JAR
MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Set Aside Default. (Doc. No.
16) The motion is fully briefed and ready for disposition. A hearing was held on May 28, 2014.
The Court heard testimony from one witness1 and received evidence on the motion. For the
following reasons, the motion will be granted.
This case arises from a dispute over an insurance claim for fire damage to a residence
located at 5260 Maple in St. Louis, Missouri, and owned by Defendant Chante Bass (“Bass”).
Plaintiff Allstate Insurance Company (“Allstate”) denied coverage based on Bass’s intentional
acts and misrepresentation of material facts regarding her claimed loss. On November 2, 2011,
Allstate filed a complaint for declaratory judgment in this Court seeking a declaration that it
owed no coverage to Bass under its Policy for the fire loss. After Bass failed to answer or
Allstate called Dennis Dahlberg, private special process server.
otherwise defend, this Court entered an Order and Judgment of Default on December 27, 2011,
declaring as Allstate requested. (Doc. No. 14)
On January 24, 2012, Bass filed a Petition against Allstate in Division 1 of the Circuit
Court of the City of St. Louis, styled Chante Bass v. Allstate Indemnity Company, Cause No.
1222-CC00413, asserting breach of contract and vexatious refusal to pay based on Allstate’s
refusal to provide coverage for the January 16, 2011 fire loss under the Policy. (Doc. No. 18-2)
Allstate removed the case to the Eastern District of Missouri on March 16, 2012. See Bass v.
Allstate Indemnity Company, 4:12-CV-505HEA. (Doc. No. 18-3) With its notice of removal,
Allstate filed its Answer raising the affirmative defense of res judicata and citing the previous
default judgment against Bass. (Doc. No. 18-4) The matter was remanded to the Circuit Court for
the City of St. Louis, Missouri on March 27, 2013 and is currently pending in that court. Allstate
again filed its Answer specifically referencing the previous default judgment. (Doc. 18-5) On
November 12, 2013, Bass filed her motion to set aside the default judgment.2 She asserts that
service was improper and, therefore, the default judgment is void and must be set aside. Allstate
opposes the motion.
The Court is mindful of the strong policy underlying the Federal Rules of Civil Procedure
favoring decisions on the merits rather than resolution of cases through default judgment. See
United States on behalf of Time Equip. Rental & Sales, Inc. v. Harre, 983 F.2d 128, 130 (8th
Cir.1993). Pursuant to Fed.R.Civ.P. 60(b), a court may relieve a party from a final default
judgment for several reasons. Fed.R.Civ.P. 55(c). Only one of those reasons - if the judgment
Although Bass brings her motion pursuant to V.A.M.R. 74.06, the Court considers it filed pursuant to
from which relief is sought is void - is implicated by Bass’s motion. If a defendant is improperly
served, the court lacks jurisdiction over the defendant, despite any actual notice of the lawsuit
that the defendant may have, rendering a default judgment void under Rule 60(b)(4). Printed
Media Servs., Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th Cir.1993) (citing Dodco, Inc. v.
American Bonding Co., 7 F.3d 1387 (8th Cir.1993), Sieg v. Karnes, 693 F.2d 803, 807 (8th
Cir.1982)). The burden of proof lies with the party challenging the validity of service. LNV
Corporation v. Robb, 843 F.Supp.2d 1002, 1003 (W.D.Mo. 2012). “Although we have
sometimes said that relief from a judgment under Rule 60(b) is an extraordinary remedy left to
the discretion of the district court, relief from a judgment that is void under Rule 60(b)(4) is not
discretionary.” Johnson v. Arden, 614 F.3d 785, 799 (8th Cir. 2010) (quoting United States v.
Three Hundred Fifty–Three Thousand Six Hundred Dollars, in United States Currency, 463 F.3d
812, 813 (8th Cir.2006)). If the underlying judgment is void, it is a per se abuse of discretion for
a district court to deny a movant’s Rule 60(b) motion. Central Vermont Public Service Corp. v.
Herbert, 341 F.3d 186, 189 (2nd Cir. 2003).
In support of her motion, Bass states that Allstate attempted to serve her by serving the
summons on her great-grandmother, Bertha Ward, at 8654 Oriole Avenue, St. Louis, Missouri on
November 12, 2011.3 Bass submits an affidavit stating that this address was “not my house or
usual place of abode,” and that after the fire loss to her home and at the time Allstate filed its
declaratory judgment action, she resided at 822 Teurville Drive, St. Louis, Missouri 63137, and
not with her great-grandmother. (Doc. No. 16-1, ¶ 4)
Under Missouri law, proper service can be effected by leaving a copy of a summons and
petition at the individual’s dwelling house or usual place of abode with a family member over the
age of fifteen. Fed.R.Civ.P. 4(e)(1); Sup.Ct.R. 54.13.
Allstate responds that it attempted to serve Bass at 5260 Maple Avenue and at 822
Teurville Drive before sending its special process server Dennis Dahlberg to 8654 Oriole
Avenue. (Doc. No. 18, p. 1) Allstate submits Dahlberg’s sworn affidavit stating that on
November 12, 2011, he served a copy of the summons and petition on Bass by leaving a copy at
her usual place of abode at 8654 Oriole Avenue, St. Louis, Missouri 63147, with Bertha Ward,
her great-grandmother. (Doc. No. 18-1, ¶ 4) Dahlberg confirmed Bass was living with Ms. Ward
at the time of service. (Id., ¶ 6) He also mailed a copy of the summons and petition to Bass at
8654 Oriole Avenue by first class mail via the United States Postal Service. (Id., ¶ 7) Dahlberg
so testified at the May 28 hearing.
In reply, Bass provides two letters addressed to her at 822 Teurville Drive, one dated
before the date of service and one dated after. The first letter, dated November 29, 2011, is from
Unitrin Direct regarding a change made to Bass’s renter’s insurance policy (Doc. No. 19-1); the
second letter, dated October 13, 2011, is from the Office of the Secretary of State regarding her
commission as a notary public. (Doc. No. 19-2) At the hearing, Bass also introduced the affidavit
of her great-grandmother stating that in November 2011 Bass did not reside with her at 8654
Oriole Avenue but instead resided at 822 Teurville Drive.
Following the hearing, the parties filed a transcript of Bass’s sworn testimony taken
during Allstate’s claim investigation on June 2, 2011. (Doc. No. 24-1) Bass testified that she
lived with her great-grandmother after the fire until March 2011, when she moved to 822
Teurville Drive, St. Louis, Missouri 63137, a full five months before Allstate filed its declaratory
judgment action. (Id., 6:16-7:9)
The issue for the Court is whether it acquired personal jurisdiction over Bass. This issue
turns on whether 8654 Oriole was in fact Bass’s home or usual place of abode, as the process
server’s affidavit states. If it was not, then the Court did not acquire personal jurisdiction over
Bass and the default judgment is void. The Eighth Circuit has held that a signed return of service
constitutes prima facie evidence of valid service, “which can be overcome only by strong and
convincing evidence.” Greater St. Louis Const. Laborers Welfare Fund v. Little, 182 F.R.D. 592
(E.D. Mo. 1998) (quoting Hicklin v. Edwards, 226 F.2d 410, 414 (8th Cir. 1955)). Bass’s denial
of service is corroborated by the letters addressed to her at 822 Teurville Drive, as well as by her
great-grandmother’s affidavit. Most importantly, the transcript of her sworn testimony taken by
Allstate in the underlying claim investigation shows that as of June 2, 2011, five months before
the alleged service, Allstate had actual knowledge that Bass’s home or usual place of abode was
822 Teurville Drive and not 8654 Oriole. Based on the record before it, the Court finds Bass has
rebutted the presumption of valid service. Bass provides no explanation for the nearly two year
delay in seeking to set aside the default judgment, despite having actual notice of the judgment in
March of 2012. Nevertheless, a default judgment entered without service of process and personal
jurisdiction is void and can be attacked at any time. Printed Media Services, 11 F.3d at 841. The
Court will therefore grant Bass’s motion to set aside the default judgment.
IT IS HEREBY ORDERED that Defendant’s Motion to Set Aside Default  is
Dated this18th day of June, 2014.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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