Hallquist et al v. United Home Loans et al

Filing 50

ORDER entered by Judge Nanette Laughrey. Defendant United Home Loan's Motion to Quash Service of Plaintiffs' Summons and Complaint [Doc. # 21] is GRANTED, and Plaintiffs Todd and Teresa Hallquist's Motion for Entry of Default and Default Judgment [Doc. # 19] is DENIED. The Court also grants UHL leave to file a responsive pleading to Plaintiffs Complaint within 14 days of the date of this Order. (Kanies, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

TODD L. HALLQUIST and
TERESA R. HALLQUIST,
Plaintiffs,
v.
UNITED HOME LOANS, INC., et al
Defendants.

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Case No. 11-04265-CV-C-NKL

ORDER
Currently pending before the Court is Defendant United Home Loan’s Motion to
Quash Service of Plaintiffs’ Summons and Complaint [Doc. # 21] and Plaintiffs Todd and
Teresa Hallquist’s Motion for Entry of Default and Default Judgment [Doc. # 19]. For
the following reasons, Defendant’s motion is GRANTED and Plaintiffs’ motion is
DENIED.
Plaintiffs filed their Complaint in this case on October 5, 2011. A return of service
of process was filed by Plaintiffs showing alleged service upon UHL on October 28,
2011. [Doc. # 8]. That filing indicates that Plaintiffs attempted to serve UHL a copy of
the Summons and Complaint by certified mailing addressed to “United Home Loans, 3
Westbrook Corp Cent # 1010, Westchester IL 60154.” On November 29, 2011, the Court
entered its Order to Show Cause against Plaintiffs for their failure to prosecute, and

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obtain a default and default judgment for the Complaint’s allegations relating to UHL.
On December 2, 2011, Plaintiffs filed their Motion for Entry of Default and Default
Judgment. On the same day, UHL filed this Motion to Quash Service of Plaintiffs’
Summons and Complaint on the grounds that service of process was improper under the
Federal Rules of Civil Procedure.
Rule 55 of the Federal Rules of Civil Procedure states 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.” Before a default may be entered, the party to be defaulted must have been
properly served with process. See Scott v. District of Columbia, 598 F. Supp. 2d 30, 36
(D. D.C. 2009).
Service of process upon a corporation is proper upon personal delivery of a copy
of the summons and complaint to an officer, managing agent, registered agent, or any
agent authorized by law to receive service of process. Fed. R. Civ. P. 4(h)(1)(B).
Alternatively, pursuant to Rule 4(h)(1)(A) and Rule 4(e)(1), service of process upon a
corporation may be effected if the service complies with Missouri law. Under Missouri
law, a plaintiff may serve a foreign corporation, via first class mail, by sending the
summons and complaint, and two copies of a notice and acknowledgment that are
substantially similar to Forms 4B or 4C of the Missouri Rules of Civil Procedure, as well
as a self-addressed envelope, to the foreign corporation. See Mo. R. Civ. P. 54.16.
As evidenced by the above referenced Rules, Plaintiffs did not properly serve
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UHL, an Illinois corporation. Plaintiffs violated Rule 4(h)(1)(B) by not personally
delivering the complaint, and also failed to comply with Missouri law by not including a
notice and an acknowledgment in the mailing. Though the Court understands that the
Plaintiffs were pro se and appeared to act in good faith in serving UHL, a default
judgment cannot be imposed upon a defendant if proper service of process has not been
effected. Because UHL has not yet been properly served, Plaintiffs’ motion for a default
judgment is denied without prejudice.
UHL has requested in its Motion that the Court grant it leave to file a responsive
pleading. UHL has given its consent to waive the improper service, stating that
“[n]otwithstanding Plaintiffs’ improper service, UHL is amenable to filing its responsive
pleading within fourteen (14) days after the Court’s order quashing service on UHL to
speed resolution of the case.” [Doc. # 3 at 3]. The Court will thus construe UHL’s
request to file a responsive pleading as a complete waiver of jurisdictional objections
concerning improper service of process. See Omni Capital Int'l, Ltd. v. Rudolf Wolff &
Co., 484 U.S. 97, 104 (1987) (absent consent, there must be authorization for service of
summons on a nonresident defendant in order for a federal court to exercise personal
jurisdiction over the defendant). Thus, the Court will grant UHL leave to file a responsive
pleading within 14 days of the date of this Order.
It is hereby ordered that Defendant United Home Loan's Motion to Quash Service
of Plaintiffs' Summons and Complaint [Doc. # 21] is GRANTED, and Plaintiffs Todd and
Teresa Hallquist's Motion for Entry of Default and Default Judgment [Doc. # 19] is
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DENIED. The Court also grants UHL leave to file a responsive pleading to Plaintiffs’
Complaint within 14 days of the date of this Order.
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s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: February 6, 2012
Jefferson City, Missouri

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