USA v. J.A. Greenwood Roofing

Filing 10

ORDER John Greenwood is directed to show cause why the court should not require defendant to be represented by counsel in this matter. Mr. Greenwood must file a notice in this court, within ten days of the date of this order, st ating the nature of the business entity J.A. Greenwood Roofing. Specifically, Mr. Greenwood must state whether J.A. Greenwood Roofing is a sole proprietorship, or whether it is an unincorporated association or trust, so the court can determine whether LR 83.6(c) applies to require defendant to be represented by counsel in this action.SO ORDERED. So Ordered by Magistrate Judge Landya B. McCafferty. (ko)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States
v.

Civ. No. 10-cv-590-LM

J.A. Greenwood Roofing
O R D E R
On December 21, 2010, Plaintiff brought this action to
enforce civil penalties totaling $25,035.05 levied against J.A.
Greenwood Roofing, a business located at 6 Kimball Road in
Londonderry, New Hampshire (doc. no. 1).

On January 31, 2011,

plaintiff filed a “Notification of Service” (doc. no. 4)
indicating that a summons, complaint, notice of assignment to
magistrate judge, and notice to file electronically, were
“personally served” on defendant roofing company on January 19,
2011.

The certificate of service filed with that notice

indicated that service was made by “delivering to and leaving
with J.A. Greenwood Roofing personally a true copy thereof, said
person being known or identified to me as the person mentioned
and described therein.”

Doc. No. 4 at p. 1.

On February 10, 2011, John Greenwood, on behalf of
defendant, filed an answer to the complaint (doc. no. 5).

In

the answer Mr. Greenwood denied the assertion in the complaint

that “defendant is J.A. Greenwood Roofing with its principal
place of business at 6 Kimball Road, Londonderry, New Hampshire
03053-9999.”

The answer stated that “[d]efendant served is John

A. Greenwood, a person who resides at 6 Kimball Road,
Londonderry, New Hampshire 03053.”

Doc. No. 5 at p. 1.

On February 17, 2011, an order was issued directing that
counsel for defendant appear in the matter by March 10, 2011,
pursuant to United States District Court District of New
Hampshire Local Rule (“LR”) 83.6(c) (doc. no. 7).

That rule

prohibits a “corporation, unincorporated association, or trust”
from appearing in this court pro se.

See LR 83.6(c).

On March

24, 2011, this court vacated the February 17, 2011 order, and
issued an order (doc. no. 8) directing plaintiff to show that
adequate service had been made on defendant.

Specifically,

plaintiff was directed to demonstrate that the individual served
with the complaint in this case was the proper recipient of
service for the defendant.

The court deferred ruling on whether

or not defendant is a corporation or other entity that must be
represented by counsel in this court until such time as the
court could determine whether or not service had been properly
made.

Doc. No. 8.

On April 12, 2011, plaintiff filed its response (doc. no.
9) to the March 24 order.

In its response, plaintiff asserts
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that: (1) In the underlying civil matter, John Greenwood
identified himself as the owner of J.A. Greenwood Roofing; (2)
the notice of penalties imposed against the roofing company was
sent to 6 Kimball Road in Londonderry, and was signed for by “J.
Greenwood” at that address; (3) J.A. Greenwood Roofing is not
registered as a corporation with the Secretary of State for the
State of New Hampshire; and (4) internet searches reveal that
J.A. Greenwood Roofing and John Greenwood share the same
address.

Plaintiff concludes that “J.A. Greenwood Roofing and

John Greenwood, as an individual, are one and the same, and that
John Greenwood is the proper party for service in this action.”
Doc. No. 9.
Discussion
I.

Service of Process
“[T]he core function of service is to supply notice of the

pendency of a legal action, in a manner and at a time that
affords the defendant a fair opportunity to answer the complaint
and present defenses and objections.”

Henderson v. United

States, 517 U.S. 654, 672 (1996); see Libertad v. Welch, 53 F.3d
428, 440 (1st Cir. 1995) (“root purpose underlying service of
process is to ensure that a defendant receives fair notice of
the suit and adequate opportunity to protect her interests”)
(internal citation omitted)).

The procedures employed to obtain
3

this purpose are set forth in Rule 4 of the Federal Rules of
Civil Procedure (“Rule 4”).
Rule 4 identifies what constitutes proper service of both
business and individual defendants in civil actions.
generally Fed. R. Civ. P. 4.

See

The requirements for serving an

individual with a federal civil action are set forth in Rule
4(e).

The requirements for serving a “corporation . . .

partnership or other unincorporated association that is subject
to suit under a common name” are set forth in Rule 4(h).

Mr.

Greenwood is an individual, and, while J.A. Greenwood Roofing is
not a corporation registered with the state, the court cannot at
this time definitively determine that J.A. Greenwood Roofing is
neither a partnership nor an unincorporated association of some
type.

As explained herein, the court now finds that whether

defendant roofing company is properly considered to be an
individual, partnership or “other incorporated association,”
service has been properly made under Rule 4.
A.

Service on Individual Under Rule 4(e)

Service on an individual in this district may be
accomplished by: (1) following state law for serving a summons
in an action brought in courts of general jurisdiction in New

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Hampshire1; (2) delivering a copy of the summons and complaint to
the individual personally, leaving a copy of the summons and
complaint at the individual’s dwelling with someone of suitable
age and discretion who resides there; or (4) delivering a copy
of the summons and complaint to an agent authorized by
appointment or by law to receive service on the individual’s
behalf.

See Fed. R. Civ. P. 4(e).

The defendant company, if it

is in fact an unincorporated sole proprietorship, is the same
entity as John Greenwood, the owner of the company.

Mr.

Greenwood personally received service at his residence, and such
service was proper and sufficient to give defendant notice of
this action and an opportunity to respond.
B.

Service on Business Entity Under Rule 4(h)(1)

Service on a partnership or other unincorporated
association in this district may be accomplished: (1) in the
manner prescribed for serving an individual under Rule 4(e)(1)
which allows service to be made by following state law for
service on an individual2; or (2) by delivering a copy of the
summons and complaint to “an officer, a managing or general
1

Service of
governed by N.H.
“[a]ll writs and
the defendant or
. . . .”

a civil action in New Hampshire state courts is
Rev. Stat. Ann. § 510:2, which states that
other processes shall be served by giving to
leaving at his abode an attested copy thereof,

2

See n. 1, supra.
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agent, or any other agent authorized by appointment or by law to
receive service of process and – if the agent is one authorized
by statute and the statue so requires – by also mailing a copy
of each to the defendant.”

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

Here,

Mr. Greenwood, even if not identifiable as the business entity
for purposes of service, is the owner of that company and thus
may be considered an officer or agent of the company.
Accordingly, personal service on Mr. Greenwood constituted
proper service upon J.A. Greenwood Roofing under Fed. R. Civ. P.
4(h)(1), to the extent that statute is applicable here.3
II.

Self-Representation
“In all courts of the United States the parties may plead

and conduct their own cases personally or by counsel . . . .”
28 U.S.C. § 1654.

A corporation, unincorporated association, or

trust, however, cannot appear pro se in any proceeding or action
in this court.

LR 83.6(c).

An individual who is simply

conducting business under a business name may appear on his own
behalf, either under his own name or “d/b/a.”

See Battle Foam,

LLC v. Brian Wade, d/b/a Outrider Hobbies, Civ. No. 10-cv-116SM, 2010 WL 2629559, at *5 (D.N.H. 2010) (citing Centrifugal
3

Because the court finds that service has been properly made
on defendant, the court need not address whether Mr. Greenwood’s
actions in this case could constitute a waiver of formal
service.
6

Force, Inc. v Softnet Commc’n, Inc., 2009 WL 1059647, at *1 n.1
(S.D.N.Y. 2009) (sole proprietor doing business under “alter
ego” business name can appear pro se under either his name or
under his “d/b/a” business name)).
J.A. Greenwood Roofing is a business entity of some type
owned by Mr. Greenwood and operated out of his personal
residence.

The record, at this nascent stage of the

proceedings, suggests that John Greenwood is an individual.

The

roofing company has not been registered with the state as a
corporate entity, and nothing in the record suggests that J.A.
Greenwood Roofing is a corporation, unincorporated association,
or trust required to be represented by counsel in this court.
However, without a definite statement as to the nature of the
business entity J.A. Greenwood Roofing, the court cannot
definitively determine whether or not LR 83.6(c), requiring
certain business entities to be represented by counsel, applies.
If John Greenwood is a sole proprietor doing business as
(“d/b/a”) J.A. Greenwood Roofing, Mr. Greenwood, in appearing
here on behalf of J.A. Greenwood Roofing, is in fact
representing his own interests and may continue to appear pro se
in this matter.4

If, however, J.A. Greenwood Roofing is an

4

Of course, nothing prevents an individual or sole
proprietor from obtaining counsel to litigate this matter.
7

unincorporated association or trust, pursuant to LR 83.6(c), the
company must be represented in this court by counsel.
John Greenwood is directed to show cause why the court
should not require defendant to be represented by counsel in
this matter.

Mr. Greenwood must file a notice in this court,

within ten days of the date of this order, stating the nature of
the business entity “J.A. Greenwood Roofing.”

Specifically, Mr.

Greenwood must state whether J.A. Greenwood Roofing is a sole
proprietorship, or whether it is an unincorporated association
or trust, so the court can determine whether LR 83.6(c) applies
to require defendant to be represented by counsel in this
action.
SO ORDERED.

_________________________________
Landya B. McCafferty
United States Magistrate Judge
Date:
cc:

May 9, 2011

Michael T. McCormack, Esq.
John Greenwood, pro se

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