Mohon v. Agentra LLC et al

Filing 119

MEMORANDUM OPINION AND ORDER Granting Motion To Set Aside Default Judgment by by District Judge Margaret I. Strickland granting 113 MOTION to Set Aside Default (Motion and Memorandum of Law in Support of Defendant Tracyann Nicole Hamiltons Motion To Set Aside Default Judgment); It Is Further Ordered that the 26 Clerk's Entry of Default and 39 Default Judgment shall be set aside. Defendant Hamilton shall be permitted to participate in this case free of default judgment against her. (jn)

Case 1:18-cv-00915-MIS-SCY Document 119 Filed 01/17/23 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BARBARA MOHON,
Plaintiff,
v.

No. 1:18-cv-00915-MIS-SCY

AGENTRA LLC; TRACYANN NICOLE
HAMILTON; and Jane Does 1-10,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO SET ASIDE DEFAULT JUDGMENT
THIS MATTER is before the Court on “Motion and Memorandum of Law in Support
of Defendant Tracyann Nicole Hamilton’s Motion to Set Aside Default Judgment” [ECF
No. 113], filed August 11, 2022, by Defendant TracyAnn Nicole Hamilton (“Defendant
Hamilton”). Plaintiff Barbara Mohon (“Plaintiff”) responded, and Defendant Hamilton
replied. ECF Nos. 115, 116. The Court, having considered the parties’ submissions, the
record, and the relevant law,1 finds that the Motion is well-taken and should be
GRANTED.
BACKGROUND
On August 1, 2018, Plaintiff filed this action in New Mexico state court against
Agentra LLC, Tracyann Nicole Hamilton, and Jane Does 1-10 alleging violations of (i) the
Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227 et seq.; (ii)
nuisance, trespass to chattels, and a civil conspiracy under New Mexico common law;

1

The Court determines that this matter is suitable for disposition without oral argument or an
evidentiary hearing, contrary to Defendant Hamilton’s request. ECF 116 at 9–10; D.N.M.LR-Civ. 7.6(a).

Case 1:18-cv-00915-MIS-SCY Document 119 Filed 01/17/23 Page 2 of 14

and (iii) Section 22 of the New Mexico Unfair Practices Act, N.M. Stat. Ann. § 57-12-22
(1978). ECF No. 1-1 at 20–36. Specifically, Plaintiff alleges Defendants operated and
profited from “a massive, nationwide robo-calling conspiracy designed to sell a type of
discounted medical benefit plan” in violation of the law. Id. at 23. According to Plaintiff,
Defendant Hamilton acted as an insurance broker and telemarketer on behalf of
Defendant Agentra LLC, an insurance brokerage agency. See id. at 25, 29.
On August 2, 2018, a state court summons was issued for Defendant Hamilton at
7971 Riviera Blvd., Apt. #101, Miramar, FL 33023 (“Riviera Blvd. address”), a business
address allegedly associated with Defendant Hamilton. Id. at 40–41, 45. However,
Plaintiff filed a motion on September 9, 2018, for alternative service of process on
Defendant Hamilton, arguing that she was evading service of process at the
aforementioned location. Id. at 44. In support, Plaintiff attached the invoice and affidavit
of the professional process server hired to serve process on Defendant Hamilton. Id. The
affidavit by the process server states:
Received by Aallen Bryant & Associates, Inc. on the 13th day
of August, 2018 at 4:00 pm to be served on Tracyann Nicole
Hamilton, 7971 Riviera Blvd #101, Miramar, FL 33023.
I, Hector Castro, being duly sworn, depose and say that on
the 24th day of August, 2018 at 1:23 pm, I:
Posted by attaching a true copy of this Summons; Request for
Jury; Complaint for Violations of The Telephone Consumer
Protection Act, The Unfair Practices Act and Torts with the
date and hour of service endorsed thereon by me, to a
conspicuous place on the property described.
Additional Information pertaining to this Service:
Posted per client instruction

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8/14 @ 11:12 am Dean Hamilton Insurance company at this
location Tracy not in maybe in after 2 pm but not sure she has
no set time. 8/14 @ 2:15 pm Not in. 8/15 @ 10:58 am- Locked.
Ring doorbell by front door, spoke to female through the
ringdoor bell device stated Tracy is on vacation won’t be back
until after Monday. 8/21 @ 10:17 am - Spoke to another
employee who state Tracy was terminated months ago, when
ask why did someone else claim she’s on vacation he
basically stated that was a new employee. 8/21 @ 10:53 am
– Per sales person claims that they are all 1099’s employees
and Tracy never comes in. 8/24 @ 1:23pm - Posted.
Id. at 50 (reference to [sic] omitted). Plaintiff elaborated that the process server “must
speak to the occupants of the business location . . . through an intercom system at the
door” because “they will allow no other access.” Id. at 44–45.
Additionally, Plaintiff maintained that public records from the State of Florida
confirmed that Defendant Hamilton was a licensed insurance broker with a business
location of “Miramar, Florida.” Id. at 45, 51. Further, Plaintiff attached additional public
records from the State of Florida that indicated Defendant Hamilton was the “owner” of
“Dean-Hamilton Insurance, LLC.” Id. at 52. The document listed Dean-Hamilton
Insurance, LLC’s current principal place of business as the Riviera Blvd. address and was
electronically signed by Defendant Hamilton on January 10, 2018. Id.
As such, Plaintiff requested the following alternate method of service of process
be permitted:
1. The process server shall make another attempt at personal
service or hand-delivery of the Summons and Complaint in
this matter on Defendant Tracyann Nicole Hamilton at 7971
Riviera Blvd #101 in Miramar, Florida. If personal service is
unsuccessful the process server shall leave the process with
or hand the process to any person who appears to be in
charge at 7971 Riviera Blvd #101 in Miramar, Florida, along
with a copy of Plaintiff’s Motion for Alternative Service and the
Court’s Order Authorizing Alternative Service of Process. If
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the process server is unable to leave the process with or hand
the process to any person who appears to be in charge at
7971 Rivera Blvd #101 in Miramar, Florida, the process server
shall post the Summons and Complaint in this matter on a
conspicuous place at the property, along with a copy of
Plaintiff’s Motion for Alternate Service and the Court’s Order
Authorizing Alternate Service of Process.
2. Plaintiff’s attorney shall also email the Summons, Plaintiff’s
Complaint, Plaintiff’s Motion for Alternate Service of Process
and the Court’s Order Authorizing Alternate Service of
Process, on two (2) separate occasions on two (2) separate
days, to: [e-mail][.] Plaintiff’s
attorney shall thereafter file a Certificate of Service.
Id. at 46. Plaintiff argued that Defendant Hamilton would receive actual notice of emails
directed to “[e-mail]” since Plaintiff received an email on
July 23, 2018, on which this email address was carbon copied. Id. at 35, 45.
On September 14, 2018, the state court granted the motion and found that “[b]ased
on the exhibits and attachments to the motion . . . substantial evidence [demonstrates]
that Defendant’s place of business is 7971 Riviera Blvd #101 in Miramar, Florida but she
has evaded personal service of process there.” Id. at 60. The state court held “the
alternate method of service of process authorized by this Order is reasonably calculated
under all the circumstances to apprise Defendant Tracyann Nicole Hamilton of the
existence and pendency of this action and to afford her a reasonable opportunity to
appear and defend.” Id.
This action was then removed to federal court on September 28, 2018. ECF No. 1
at 1. The Court notes that Plaintiff did not request issuance of a federal court summons
after removal. Subsequently, on October 25, 2018, an affidavit of service was entered
stating:

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I, Hector Castro, being duly sworn, depose and say that on
the 15th day of October, 2018 at 4:06 pm, I:
Posted by attaching a true copy of this Summons; Request for
Jury; Complaint for Violations of The Telephone Consumer
Protection Act; Exhibits; The Unfair Practices Act and Torts;
Motion for Alternative Service of Process on Defendant Tracy
Ann Nicole Hamilton; Order Authorizing Alternate Service of
Process with the date and hour of service endorsed thereon
by me, to a conspicuous place on the property described.
Additional Information pertaining to this Service:
This was served in accordance with the Order for Alternate
Service. attempted 10/4 @ 11:50 AM, no answer; attempted
10/10 @ 2:30 PM, no answer[.]
ECF No. 13 at 1. Additionally, a certificate of service was entered on December 2, 2018,
to

establish

that

Plaintiff

sent

two

emails

on

two

separate

days

to

“[e-mail]” in accordance with the state court’s order. ECF
No. 20 at 1–3.
On January 7, 2019, Plaintiff requested the Clerk of the Court enter default against
Defendant Hamilton, which the Clerk of the Court entered on January 9, 2019. ECF Nos.
24 at 1–3; 26 at 1. Plaintiff then moved for a default judgment against Defendant Hamilton
only on her claims for statutory damages under the TCPA and waived the rest of her
claims against Defendant Hamilton. ECF No. 25 at 2. On June 5, 2019, the Court granted
Plaintiff’s motion for default judgment, based on the Court’s conclusion that the record
established that Defendant Hamilton “defaulted for her failure to appear, answer or
respond to Plaintiff’s Complaint despite receiving service of process.” ECF No. 39 at 1.
Consequently, the Court entered default judgment in favor of Plaintiff and against
Defendant Hamilton in the amount of $90,000.00, with interest. Id. at 2.

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On August 11, 2022, Defendant Hamilton, claiming that she had no prior
knowledge of the lawsuit, filed the underlying Motion to set aside the default judgment
according to Rules 55(c) and 60(b) of the Federal Rules of Civil Procedure. ECF No. 113.
Plaintiff responded, and Defendant Hamilton replied. ECF Nos. 115, 116.
PARTIES’ ARGUMENTS
Defendant Hamilton argues Plaintiff’s default judgment is void and offends due
process as she was not properly served. ECF No. 113 at 3. Specifically, Defendant
Hamilton contends she did not receive actual notice of the lawsuit and default judgment
until on or about July 11, 2022, when she learned her TD Ameritrade account had been
garnished by Plaintiff to satisfy the default judgment. ECF No. 113-1 at 1–2. Further,
Defendant Hamilton states that she has not worked at the Riviera Blvd. address since
2017 and has never resided at the Riviera Blvd. address. Id. at 1. As such, Defendant
Hamilton argues there was no proper service under either federal or New Mexico law.
ECF No. 113 at 3–4.
Plaintiff, however, argues Defendant Hamilton was adequately served, both via
email and at her business address, and she had actual knowledge of the summons and
complaint prior to entry of judgment. ECF No. 115 at 3. Additionally, Plaintiff rebuts
Defendant Hamilton’s contention that she has not worked at the Riviera Blvd. address
since 2017. Id. at 7. Plaintiff references from the record and attaches as exhibits multiple
documents, including public records from the State of Florida, that indicate from 2017 to
2022 the Riviera Blvd. address was Defendant Hamilton’s business address. ECF Nos.
11 at 22; 115-1 at 5; 115-2 at 1; 115-3 at 2, 4; 115-4 at 2–3, 5; 115-5 at 1; 115-6 at 1;
115-7 at 1; 115-8 at 1–2; 115-9 at 1; 115-10 at 3; 115-11 at 2; 115-12 at 1; 115-13 at 1;
6

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115-14 at 1; 115-15 at 1; 115-16 at 8. Many of these documents list Defendant Hamilton
as the “owner” and registered agent of “Dean-Hamilton Insurance, LLC” and “DeanHamilton Socioeconomic Development, Corp.” with a principal place of business at the
Riviera Blvd. address and are signed by Defendant Hamilton. Further, Plaintiff furnishes
documents

to

suggest

“[e-mail]”

was

Defendant

Hamilton’s email address. ECF Nos. 1 at 35; 11 at 22.
In rebuttal, Defendant Hamilton provides affidavits that state the placement of the
Riviera Blvd. address on public filings was a clerical error and that her business no longer
operated at that location by early 2018. ECF Nos. 116 at 6–7; 116-1 at 2–4; 116-4 at 1–
2. Further, Defendant Hamilton argues Plaintiff fails to demonstrate receipt of any emails
sent to “[e-mail]” and that this email address was inactive
on November 30, 2018 and December 2, 2018, when Plaintiff emailed the state court
summons and complaint. ECF Nos. 116 at 6, 8–9; 116-1 at 3.
LEGAL STANDARD
Default judgments are generally disfavored in light of the objective that “every effort
should be made to try cases on their merits.” Greenwood Explorations, Ltd. v. Merit Gas
& Oil Corp., 837 F.2d 423, 426 (10th Cir. 1998). Under Federal Rule of Civil Procedure
55(c), a district court “may set aside a final default judgment under Rule 60(b).” Federal
Rule of Civil Procedure 60(b)(4) provides that “[o]n motion and just terms, the court may
relieve a party or its legal representative from a final judgment, order, or proceeding [if] .
. . the judgment is void . . . .”
A final judgment is void under Federal Rule of Civil Procedure 60(b)(4) only “where
[the] judgment is premised either on a certain type of jurisdictional error or on a violation
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of due process that deprives a party of notice or the opportunity to be heard.” United
States Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010). The right to relief from a
void judgment is mandatory. V. T. A., Inc. v. Airco, Inc., 597 F.2d 220, 224 n.8 (10th Cir.
1979). And, unlike its counterparts, Federal Rule of Civil Procedure 60(b)(4) is not subject
to time limitations, nor does the moving party need to establish a meritorious defense. Id.
at 224; Covington Indus., Inc. v. Resintex A. G., 629 F.2d 730, 733 n.3 (2d Cir. 1980).
For example, a judgment is void and must be set aside if there is no personal
jurisdiction over the defendant. Myzer v. Bush, 750 F. App’x 644, 648 (10th Cir. 2018). A
court lacks personal jurisdiction over a defendant if there is insufficient service of process.
Emps. Reinsurance Corp. v. Bryant, 299 U.S. 374, 376 (1937). Federal Rule of Civil
Procedure 4 governs service of process and “provides the mechanism by which a court .
. . asserts jurisdiction over the person of the party served.” Okla. Radio Assocs. v.
F.D.I.C., 969 F.2d 940, 943 (10th Cir. 1992). Unless service is waived, proof of service
must be made to the court. Fed. R. Civ. P. 4(l). Thus, “a judgment entered without notice
or service is constitutionally infirm.” Peralta v. Heights Medical Center, Inc., 485 U.S. 80,
84 (1988).
DISCUSSION
The Court addresses Defendant Hamilton’s argument that the final judgment is
void pursuant to Federal Rule of Civil Procedure 60(b)(4). For the Court to have proper
personal jurisdiction over Defendant Hamilton, Plaintiff must have followed the edicts of
Federal Rule of Civil Procedure 4 and due process.
As an initial matter, Federal Rule of Civil Procedure 4(a) requires the summons to
have the Court’s name, the Clerk of the Court’s signature, the Court’s seal, and the time
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within which the defendant must appear and defend. Fed. R. Civ. P. 4(a)(1)(A), (D), (F)–
(G). The summons that Plaintiff attempted to serve on Defendant Hamilton after removal
does not satisfy those requirements. ECF Nos. 13 at 2; 20 at 2–3. Rather, Plaintiff used
the state court summons instead of requesting and serving a federal one. The state court
summons has the state court’s name and seal, the state Clerk of Court’s signature, and
indicates the time under New Mexico law within which a defendant must appear and
defend. Compare N.M. Dist. Ct. R. Civ. P. 1-012(A) (“A defendant shall serve his answer
within thirty (30) days after the service of the summons and complaint upon him.”) with
Fed. R. Civ. P. 12(a)(1)(A)(i) (“A defendant must serve an answer . . . within 21 days after
being served with the summons and complaint . . . .”). Additionally, a state court summons
becomes null and void once a case is removed to federal court. Beecher v. Wallace, 381
F.2d 372, 373 (9th Cir. 1967); Ibarra v. City of Clovis, No. 4-cv-1253, 2005 WL 8163456,
at *2 (D.N.M. Dec. 14, 2005). Thus, the use of the state court summons by Plaintiff after
removal was ineffective per Federal Rule of Civil Procedure 4(a).
Next, the Court determines whether service of process itself was proper. Federal
Rule of Civil Procedure 4(e)(2) states that service on an individual may be accomplished
by:
(A) delivering a copy of the summons and of the complaint to
the individual personally;
(B) 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
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.

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Alternatively, Federal Rule of Civil Procedure 4(e)(1) provides that an individual
may be served 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 . . . .” As Plaintiff does not assert that service of process was effectuated
according to Federal Rule of Civil Procedure 4(e)(2), the Court determines whether
process was made according to New Mexico law.
New Mexico law lays out a hierarchy of methods for service of process on an
individual. N.M. Dist. Ct. R. Civ. P. 1-004(F) comm. commentary (“A hierarchy of methods
of service has been established. In some cases, a listed method of service cannot be
used until other methods of service are attempted unsuccessfully.”). First, New Mexico
Rule of Civil Procedure 1-004(F)(1)(a) requires service to be attempted on the individual
personally. N.M. Dist. Ct. R. Civ. P. 1-004(F)(1)(a)(“Personal service of process shall be
made . . . to the individual personally; or if the individual refuses to accept service, by
leaving the process at the location where the individual has been found; and if the
individual refuses to receive such copies or permit them to be left, such action shall
constitute valid service . . . .”). Additionally, New Mexico Rule of Civil Procedure 1004(F)(1)(b) allows service of process “by mail or commercial courier service as provided
in” New Mexico Rule of Civil Procedure 1-004(E)(3).2
Next, New Mexico Rule of Civil Procedure 1-004(F)(2) requires service to be made
on “some person residing at the usual place of abode of the defendant who is over the

2 New Mexico Rule of Civil Procedure 1-004(E)(3) permits for service by mail “provided that the
envelope is addressed to the named defendant” and “the defendant or a person authorized by appointment
. . . to accept service of process upon the defendant signs a receipt for the envelope or package containing
the summons and complaint . . . .”

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age of fifteen” and for service to be sent by first class mail to “the defendant’s last known
mailing address.” Only after service of process is attempted by New Mexico Rule of Civil
Procedure 1-004(F)(1) and (F)(2), may (F)(3) be invoked. New Mexico Rule of Civil
Procedure 1-004(F)(3) permits a copy of the process to be delivered to the defendant’s
“actual place of business or employment . . . to the person apparently in charge” and for
service to be mailed “to the defendant at the defendant’s last known mailing address and
at the defendant’s actual place of business or employment.”
Plaintiffs’ process server did not attempt to personally serve Defendant Hamilton
or to serve some person at Defendant Hamilton’s home address. See N.M. Dist. Ct. R.
Civ. P. 1-004(F)(1)–(2). Nor does the record reflect that the summons and complaint were
mailed to Defendant Hamilton at her home address, the Riviera Blvd. address, or any
other address. Pursuant to New Mexico Rule of Civil Procedure 1-004(F)(3), only if a
plaintiff attempts service personally or at the defendant’s residence may the plaintiff serve
the defendant at their actual place of business. See, e.g., Diaz v. United States Att’y Gen.
Off., No. 14-cv-1086, 2015 WL 13307288, at *3 (D.N.M. Aug. 4, 2015); Bodenner v.
Martin, No. 12-cv-601, 2012 WL 12845649, at *7 (D.N.M. Nov. 30, 2012); Bagley v. Costa,
No. 6-cv-1101, 2007 WL 9734851, at *1 (D.N.M. Feb. 8, 2007); Edmonds v. Martinez,
215 P.3d 62, 66 (N.M. Ct. App. 2009); Ortiz v. Shaw, 193 P.3d 605, 610–11 (N.M. Ct.
App. 2008). Irrespective of whether the Riviera Blvd. address was Defendant Hamilton’s
actual place of business, Plaintiff failed to comply with the prescribed hierarchy set forth
in New Mexico Rule of Civil Procedure 1-004(F).
Nevertheless, the state court granted Plaintiff leave to effectuate alternative
service of process on Defendant Hamilton. ECF No. 1-1 at 60. New Mexico Rule of Civil
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Procedure 1-004(J) provides that, where it has been shown by affidavit that service
cannot otherwise be reasonably made under New Mexico Rule of Civil Procedure 1-004,
a moving party may seek leave of the court to effect service “by any method or
combination of methods . . . that is reasonably calculated under all of the circumstances
to apprise the defendant of the existence and pendency of the action and afford a
reasonable opportunity to appear and defend.” Accordingly, a party requesting service on
an individual by unconventional methods must demonstrate that the hierarchy outlined in
New Mexico Rule of Civil Procedure 1-004(F) was followed diligently, although their
attempts were unsuccessful. Soto v. Vill. of Milan Police Dep’t, No. 10-cv-43, 2010 WL
11619168, at *2 (D.N.M. Sept. 17, 2010); Martinez v. Segovia, 62 P.3d 331, 338 (N.M.
Ct. App. 2002).
Plaintiff’s motion in state court and accompanying affidavit by the process server
for alternative service of process failed to establish that process could not otherwise be
reasonably made under Rule 1-004(F). First, Plaintiff did not allege any attempt to serve
Defendant Hamilton personally or by mail as required by New Mexico Rule of Civil
Procedure 1-004(F)(1). Nor did Plaintiff allege that any such attempts would be
unsuccessful. Second, Plaintiff did not allege any attempt to serve Defendant Hamilton at
her home address or mail the summons and complaint to Defendant Hamilton’s last
known mailing address as required by New Mexico Rule of Civil Procedure 1-004(F)(2).
Nor did Plaintiff allege that Defendant Hamilton’s home address was unascertainable.
See, e.g., Ellis v. United States, No. 20-cv-971, 2021 WL 1999492, at *2 (D.N.M. May 19,
2021). Finally, Plaintiff did not allege any attempt for service to be mailed to Defendant
Hamilton at her last known mailing address and actual place of business as required by
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New Mexico Rule of Civil Procedure 1-004(F)(3). Nor did Plaintiff allege that doing so
would be unfeasible. Accordingly, Plaintiff’s motion in state court and accompanying
affidavit did not make the requisite showing to authorize alternative methods of service
under New Mexico Rule of Civil Procedure 1-004(J).
After removal of an action from state court, the federal court may redetermine the
propriety of state-court orders concerning the sufficiency of process. 14C Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure § 3738 (4th ed.). A federal court
is free to reconsider a state court order and treat the order as it would any interlocutory
order it might itself have entered. Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300,
1303–04 (5th Cir. 1988). In light of this and the Court’s determination that Plaintiff’s motion
in the state court did not establish the requisite showing under New Mexico Rule of Civil
Procedure 1-004(J), the Court finds that the alternate service of process on Defendant
Hamilton failed to comport with New Mexico law and due process. See Mullane v. Cent.
Hanover Bank & Tr. Co., 339 U.S. 306, 314–15 (1950); Edmonds, 215 P.3d at 67.
Lastly, in New Mexico, actual notice of service is not a substitute for service of
process on an individual in accordance with New Mexico Rule of Civil Procedure 1–
004(F). Exec. Consulting, Inc. v. Kilmer, 931 F. Supp. 2d 1139, 1141 (D.N.M. 2013);
Trujillo v. Goodwin, 116 P.3d 839, 841 (N.M. Ct. App. 2005).
In sum, the Court determines the summons and service of process on Defendant
Hamilton was ineffective, and thus there was no personal jurisdiction over her.
Accordingly, the final judgment is void under Federal Rule of Civil Procedure 60(b)(4).

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CONCLUSION
For the foregoing reasons, it is HEREBY ORDERED that “Motion and
Memorandum of Law in Support of Defendant Tracyann Nicole Hamilton’s Motion to Set
Aside Default Judgment” [ECF No. 113] is GRANTED.
It is FURTHER ORDERED that “Clerk’s Entry of Default” [ECF No. 26] and “Default
Judgment Against Defendant Tracyann Nicole Hamilton” [ECF No. 39] SHALL be set
aside. Defendant Hamilton SHALL be permitted to participate in this case free of default
judgment against her.

………………………………………….
MARGARET STRICKLAND
UNITED STATES DISTRICT JUDGE

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