American National Insurance Company v. Bennett et al

Filing 38

ORDER denying 37 Motion for Entry of Default. On this record, ANI failed to properly serve EFF. Without being properly served, EFF has no obligation to appear or answer in this action. Accordingly, the motion for entry of default[D.E. 37] is DENIED. ANI may file a motion to extend the time period to effect service under Federal Ru1e 4(m) and for the reissuance of summons. Signed by Chief Judge James C. Dever III on 7/18/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:16-CV-109-D

AMERICAN NATIONAL INSURANCE
COMPANY,

)
)
)
Plaintiff,
)
)
)
v.
)
)
EXPRESS FUNERAL FUNDING, LLC
1303 Lynch Lane
)
Clarksville, IN 47129
)
)
DEBORAH MCNAIR BENNETT,
)
1007 W. Main Street
)
Bennettsville, SC 29512-3705
)
)
)
PATRICIA OLIVER,
511 N .E. ()lh Place
)
)
Cape Coral, FL 33909
)
)
HELEN FAISON
)
1380 Faison Hwy
)
Clinton, NC 28328-6108
)
)
MARTHA MCNAIR
)
3075 Baxley Ct.
Atlanta, GA 30349-47014
)
)
BUTLER & SON FUNERAL HOME INC. )
Attn: Timmy R. Butler, President
)
10501 Roseboro Hwy
)
Roseboro, NC 28382
)
)
)
Defendants.

ORDER

On May 18, 2016, American National Insurance Company ("ANI" or "plaintiff') filed a
complaint seeking interpleader relief regarding the distribution of insurance benefits arising out
ofthe death ofdecedent Elwell McNair, Jr., and naming as defendants Deborah McNair Bennett,

Patricia Oliver, Helen Faison, and Martha McNair [D.E. 1]. On May 26,2016, ANI filed an
amended complaint, adding Express Funeral Funding, LLC ("EFF"), as a defendant [D.E. 6].
On June 2, 2016, ANI moved for an order granting leave to deposit interpleader funds into the
registry of the court [D.E. 10], which the court granted on June 6, 2016 [D.E. 13]. On October
28, 2016, ANI moved for an amended and corrected order granting leave to deposit interpleader
funds into the registry ofthe court [D.E. 21]. On October 31,2016, the court granted the motion
[D.E. 22]. On November 11, 2016, ANI moved for leave to file a second amended complaint
for interpleader [D.E. 23]. On November 14,2016, the court granted the motion [D.E. 25]. On
November 15, 2016, ANI filed a second amended complaint, adding Butler & Son Funeral
Home, Inc., as a defendant [D.E. 26]. On January 6, 2017, the clerk issued a notice to ANI
stating that the docket did not reflect that service had been obtained on EFF. On January 6,
2017, ANI filed an affidavit of service as to EFF [D .E. 3 5]. After the clerk issued a notice to
ANI to proceed after EFF's failure to answer, ANI moved for entry of default as to EFF [D.E.
37]. As explained below, the motion is denied.
Ru1e 55 of the Federal Rules of Civil Procedure provides: "When 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." Fed. R. Civ.
P. 55(a). ANI correctly states that EFF has failed to file an answer or otherwise appear in this
action in this court. ANI has not, however, shown by affidavit or otherwise that EFF was
properly served. Without being properly served, a defendant has no obligation to file an answer
orappearinanaction. See Maryland StateFiremen'sAss'n v. Chaves, 166 F.R.D. 353,354 (D.
Md. 1996); Henderson v. Los Angeles Cty., No. 5:13-CV-635-FL, 2013 WL 6255610, at *1
(E.D.N.C. Dec. 4, 2013) (unpublished); see also Fed. R. Civ. P. 12(a)(l)(A).

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ANI alleges that EFF is a Indiana limited liability company. See [D.E. 26]

at~

3. The

affidavit of service filed by ANI states this defendant was served via Federal Express, with
delivery addressed to "Express Funeral Funding, LLC at 1503 Lynch Lane, Clarksville, IN
47129." [D.E. 35] at~ 2. Proper service may be effected under Ru1e 4(h) 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 service is made, or by delivering a copy of the summons and of the
complaint, to an officer, a managing or general agent, or any other agent authorized by
appointment or by law to receive service of process. Fed. R. Civ. P. 4(h)(1). Both North
Carolina and Indiana law provide for service by Federal Express. See N.C. Gen. Stat.§ 1A-1,
Ru1e 40)(6); Ind. R. Trial. P. 4.1(A)(1), 4.6. Both states, however, require that the delivery be
addressed to certain persons to effect proper service. See. N.C. Gen. Stat. § 1A-1, Ru1e 40)(6)(d)
(providing that service by certified mail is effective if "addressed to the officer, director, or
managing agent" or "an agent authorized by appointment of law to be served and to accept
service of process"); Ind. R. Trial. P. 4.6(A) (providing that service on an organization may be
made "upon an executive officer thereof, or if there is an agent appointed or deemed by law to
have been appointed to receive service, then upon such agent"); Choice Hotels Int'l v. Amcee
Enter.. Inc., No. 5:13-CV-200-F, 2014 WL 3778932, at *2 (E.D.N.C. Ju1y 31, 2014)
(unpublished); NNDYMIN. Inc. v. UV Imports. Inc., No. 3:09-CV-129-RLY-WGH, 2011 WL
1225573, at *3 (S.D. Ind. Mar. 30, 2011) (unpublished).
On this record, ANI failed to properly serve EFF. Without being properly served, EFF has
no obligation to appear or answer in this action. Accordingly, the motion for entry of default
[D.E. 37] is DENIED. ANI may file a motion to extend the time period to effect service under
Federal Ru1e 4(m) and for the reissuance of summons.

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SO ORDERED. This~ day of July 2017.

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