Joe Hand Promotions, Inc v. Von Voight et al

Filing 8

ORDER denying without prejudice 6 Motion for Entry of Default. Signed by Julie A. Richards, Clerk of Court on 9/13/2013. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:13-CV-21-F

JOE HAND PROMOTIONS, INC.,
a foreign corporation,
Plaintiff,
v.
MONICAL YNN VON VOIGT, Individually,
and as an officer, director, shareholder, and/or
principal of GOODING INVESTMENT
GROUP, LLC d/b/a KINGS CUP
and
BRANDON W. GOODING, Individually,
and as an officer, director, shareholder, and/or
principal of GOODING INVESTMENT
GROUP, LLC d/b/a KINGS CUP
and
GOODING INVESTMENT GROUP, LLC
d/b/a KINGS CUP,
Defendants.

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ORDER

On January 29, 2013, Joe Hand Promotions, Inc. ("plaintiff') filed this action against
defendants Monica Lynn Von Voigt ("Von Voigt") and Brandon W. Gooding ("Gooding"),
individually and as officers, directors, shareholders and/or principals of Gooding Investment Group,
LLC d/b/a Kings Cup, and Gooding Investment Group, LLC d/b/a Kings Cup ("Gooding Investment")
[D.E. 1]. In sum, plaintiff asserts that defendants violated its distribution rights to the UFC 127:
Penn v. Fitch broadcast, scheduled for February 11, 2011. Compl. 3-8.

On March 25, 2013, plaintiff filed a motion for entry of default against defendants pursuant
to Rule 55( a) of the Federal Rules of Civil Procedure [D.E. 6]. This rule provides for entry of default
against a party who "has failed to plead or otherwise defend." Fed. R. Civ. P. 55(a). Before the clerk
may enter default, plaintiff must establish that defendants were properly served with summons and
the complaint. See Fed. R. Civ. P. 4. Plaintiff has not met this burden.
Plaintiff engaged a private process server to serve defendants. Aff. Service [D.E. 5]. On
March 1, 2013, the private process server attempted to serve Von Voight and Gooding. Aff. Service
[D.E. 5-1; 5-2]. The proof of service was returned "unexecuted" because VonVoight and Gooding
allegedly refused to be served. [D.E. 5-1, 5-2]. The law is well settled that a defendant may not evade
service. See 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure§ 1095, n.
6. (3d ed. 2002). However, plaintiff fails to show that the process server made a reasonable effort
to simply leave the papers in Von Voight's and Gooding's physical proximity, thereby providing
notice of this action. See Ancient Sun Nutrition, Inc. v. Lawlor, No. 1 :07-CV -395, 2008 WL
1944235, at *2 (W.D.N.C. May 1, 2008) (unpublished) (citing Slaieh v. Zeineh, 539 F.Supp.2d 864,
868 (S.D.Miss. 2008). Moreover, it does not appear that plaintiff engaged in any subsequent attempts
to serve Von Voight and Gooding by private process server or otherwise under Rule 4(e). See Fed.
R. Civ. P. 4(e); see, Sh&, Joe Hand Promotions, Inc. v. Bougie, Inc., No. 109-CV-00590TSEIDD,
2010 WL 1790973, at *2 (E.D. Va. Apr. 12, 2010) (unpublished) (plaintiff attempted service on five
separate occasions). Plaintiffhas not established that service of process was effected on Von Voigt
and Gooding. Accordingly, plaintiffs motion for entry of default against Monica Lynn Von Voigt
and Brandon W. Gooding, individually and as officers, directors, shareholders and/or principals of
Gooding Investment Group, is denied without prejudice.

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As for Gooding Investment Group, the private process server served the summons and
complaint on a female bartender at its principal place of business on March 1, 2013. Id. Plaintiff
fails to show that service on the female bartender was in conformance with Federal Rule of Civil
Procedure 4(h)(l)(A) or that she is "an officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of process" for Gooding Investment Group.
Fed. R. Civ. P. 4(h)(l)(B). Therefore, plaintiffs motion for entry of default against Gooding
Investment Group, LLC d/b/a Kings Cup is denied without prejudice.
In brief, plaintiffs motion for entry of default is DENIED without prejudice against
defendants Monica Lynn Von Voigt and Brandon W. Gooding, individually and as officers, directors,
shareholders and/or principals of Gooding Investment Group, LLC d/b/a Kings Cup , and Gooding
Investment Group, LLC d/b/a Kings Cup [D.E. 6].
SO ORDERED. This

\~day of September 2013.

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