AZEEZ v. LAGAN et al

Filing 12

ORDER denying w/out prejudice 9 Motion for Default Judgment; that Plaintiff will serve Defendants in accordance with the Federal Rules of Civil Procedure within 60 days of this order; etc. Signed by Judge Faith S. Hochberg on 8/5/14. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JAMAL DEEN AZEEZ,
Plaintiff,
v.
SEAMUS LAGAN, et al.,
Defendants.

:
:
:
: Civil Case No. 14-616 (FSH)
:
: ORDER
:
: Date: August 5, 2014
:
:
:

HOCHBERG, District Judge:
This matter comes before the Court upon Plaintiff Jamal Deen Azeez’s motion for default
judgment against all named Defendants 1 (Dkt. No. 9); and
it appearing that the Clerk of the Court has not entered default against the named
Defendants; and
it appearing that the entry of default is required before the Court can enter default
judgment under Federal Rule of Civil Procedure 55(b), see Nationwide Mut. Ins. Co. v. Starlight
Ballroom Dance Club, Inc., 175 F. App’x 519, 521 n.1 (3d Cir. 2006) (“Prior to obtaining a
default judgment under either Rule 55(b)(1) or Rule 55(b)(2), there must be an entry of default as
provided by Rule 55(a).”); and

1

The Defendants in this matter are Seamus Lagan, Thomas Mendolia, D.O., Sharon Hollis,
Frank Rocca, Medytox Solutions, Inc., Medytox Diagnostics, Inc., and Medytox Medical
Marketing & Sales Inc. These corporations are referred to as “Medytox Solutions, Diagnostics,
Medical Marketing and Sales Inc.” in the complaint.

it appearing that in order to obtain default and default judgment, Plaintiff must properly
serve Defendants in accordance with the Federal Rules of Civil Procedure, Capers v. Quest
Capital Strategies, Inc., Civ. No. 06-5780, 2007 WL 2033831, at *2 (D.N.J. July 10, 2007) (“It
is well settled that service must be proper in order to receive an entry of default.”); and
it appearing that Plaintiff has failed to properly serve the Defendants he seeks default
judgment against; 2

2

Plaintiff submitted several affidavits concerning service. A process server attempted to
serve Frank Rocca on April 4, 2014 at 71 Franklin Turnpike, Suite 1-3, Waldwick, NJ 07463—
Defendants’ alleged place of business. (Dkt. No. 4.) However, a person named “Farrah” refused
to accept service. (Id.) Following this single attempt, the process server mailed copies of the
summons and complaint, via U.S. Mail Return Receipt Requested, to “defendants’ main office
located at 400 S. Australian Blvd, West Palm Beach, Florida 33401” and addressed it to
“Defendant Frank Rocca.” (Dkt. No. 9-1, ¶ 8; see also Dkt. No. 4.) Plaintiff claims that Mr.
Rocca acknowledged receipt of the complaint. (Id., ¶ 9.) The Court notes that the returned
receipt appears to bear the name “Kelly Marsden,” not Frank Rocca. (Dkt. No. 9-3; see also Dkt.
No. 4.) On May 9, 2014, a process server attempted service on “Medytox Medical Solutions” at
the same 71 Franklin Turnpike address and left the summons and complaint with “Farrah.” (Dkt.
No. 5.)
Plaintiff has attempted to serve both individuals and corporations. Under Federal Rule of
Civil Procedure 4(h) service on a corporation may be effected by service upon an officer or
someone authorized to receive service. Fed. R. Civ. P. 4(h). The rule also provides that service
can be made in the manner prescribed for individuals, specifically, either by the manner
prescribed by the law of the state where the district court is located (New Jersey) or in which
service is effected. See Fed. R. Civ. P. 4(h)(1)(a) and 4(e)(1). In New Jersey, service can be
made by certified mail, but only after personal service is unsuccessful following “a reasonable
and good faith attempt.” See N.J.Ct.R. 4:4-3. This rule states:
[S]ervice may be made by mailing a copy of the summons and complaint
by registered or certified mail, return receipt requested, to the usual place
of abode of the defendant or a person authorized by rule of law to accept
service for the defendant or, with postal instructions to deliver to
addressee only, to defendant’s place of business or employment. If the
addressee refuses to claim or accept delivery of registered or certified
mail, service may be made by ordinary mail addressed to the defendant’s
usual place of abode. The party making service may, at the party’s option,
make service simultaneously by registered or certified mail and ordinary
mail, and if the addressee refuses to claim or accept delivery of registered
(Footnote continued on next page . . . )
2

ACCORDINGLY, it is on this 5th day of August, 2014,
ORDERED that the Plaintiff’s motion for default judgment (Dkt. No. 9) is DENIED
WITHOUT PREJUDICE; and it is further

mail and if the ordinary mailing is not returned, the simultaneous mailing
shall constitute effective service.
Such service must also be accompanied by an affidavit: “If service is made by mail, the party
making service shall make proof thereof by affidavit which shall also include the facts of the
failure to effect personal service and the facts of the affiant’s diligent inquiry to determine
defendant’s place of abode, business or employment.” N.J.Ct.R. 4:4-7; see also N.J.Ct.R. 4:4-3.
Under Federal Rule 4(e), an individual may be served by following the state law where
the district court is located (New Jersey) or where service is made. Under New Jersey law, the
primary method of serving an individual is through personal service. N.J.Ct.R. 4:4-4(a).
However, as noted above, mailing is permitted after “diligent effort and inquiry personal service
cannot be made in accordance with paragraph (a) of this rule,” N.J.Ct.R. 4:4-4(b)(1), and must be
done by “mailing a copy of the summons and complaint by registered or certified mail, return
receipt requested, and, simultaneously, by ordinary mail.” N.J.Ct.R. 4:4-4(b)(1)(C). Plaintiff is
also required to submit an affidavit so certifying. N.J.Ct.R. 4:4-4(b)(1).
In addition, service may be made on an individual by delivering a copy of the summons
and of the complaint to the individual personally, leaving a copy of each at the individual’s
dwelling or usual place of abode with someone of suitable age and discretion who resides there,
or delivering a copy of each to an agent authorized by appointment or by law to receive service
of process. Fed. R. Civ. P. 4(e)(2).
Service has not been properly effectuated in this case. First, there is no record of any
attempted service on Seamus Lagan, Thomas Mendolia, D.O., or Sharon Hollis. Therefore, entry
of default and default judgment would be improper as to these defendants.
Second, Plaintiff has not properly served the corporate entities or Frank Rocca in this
matter. Simply put, Plaintiff’s attempt to serve process on “Medytox Solutions, Diagnostics,
Medical Marketing and Sales Inc.” and Frank Rocca at a New Jersey address is not enough to
show a reasonable good faith attempt at service to allow for mailing of the summons and
complaint when Plaintiff is aware that “defendants’ main office” is in Florida. (Dkt. No. 9-1, ¶
8.) Moreover, Plaintiff’s complaint notes that Medytox Solutions’ corporate headquarters is
located in Florida and that the Waldwick, NJ address is only an alleged subsidiary of Medytox.
(Dkt. No. 1, ¶ 5; see also Dkt. No. 9-1, ¶ 10.) New Jersey law does not permit service of a parent
corporation by serving an employee of a subsidiary if that subsidiary is not authorized to accept
service on behalf of the parent corporation. See Mason v. Therics, Inc., Civ. No. 08-2404, 2009
WL 44743, at *2-*3 (D.N.J. Jan. 6, 2009). Service also fails because Plaintiff’s affidavit does
not state “the facts of the affiant’s diligent inquiry to determine defendant’s place of abode,
business or employment,” and Plaintiff failed to simultaneously send the summons and
complaint by regular mail.
3

ORDERED that Plaintiff will serve Defendants in accordance with the Federal Rules of
Civil Procedure within 60 days of this order; after proper service, should Defendants fail to
answer, or otherwise move this Court, within the time allotted by the Federal Rules of Civil
Procedure then Plaintiff may seek default and default judgment as allowed by the Federal Rules.

IT IS SO ORDERED.
/s/ Faith S. Hochberg__________
Hon. Faith S. Hochberg, U.S.D.J.

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