Becvar v. DCN Holdings, Inc.
ORDER granting 14 Defendants Motion for Relief from Judgement. Signed by District Judge Max O. Cogburn, Jr on 11/18/2022. (ams)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
DCN HOLDINGS, INC.,
THIS MATTER comes before the Court on Defendant’s Motion for Relief from
Judgment on the ground that the judgment is void due to lack of service of process. (Doc. No.
14). For the following reasons, Defendant’s motion is GRANTED.
Plaintiff Andrew Becvar filed a lawsuit against Defendant DCN Holdings, Inc., alleging
that Defendant intentionally contacted and disclosed Plaintiff’s private information to Plaintiff’s
mother in its attempts to collect a consumer debt from Plaintiff. Specifically, Plaintiff alleges this
conduct violates the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §1692, et. seq.
and the North Carolina Collection Agency Act (“NCCAA”), N.C. GEN. STAT. § 58-70-95. (Doc.
The Clerk issued the summons for service on Defendant. (Doc. No. 3). Plaintiff first
attempted to serve Defendant pursuant to FLA. STAT. § 48.081(1)(a). Defendant is a business
corporation with its principal address, mailing address, and registered agent address all being
registered with the Florida Secretary of State as 1806 33rd Street, Suite 180, Orlando, FL 32839
Case 3:21-cv-00260-MOC-DSC Document 20 Filed 11/21/22 Page 1 of 5
(“33rd Street Address”). (Doc. No. 18-1). Accordingly, Plaintiff hired a process server to serve
Defendant with the Summons and Complaint at the 33rd Street Address. However, Plaintiff’s
process server was unsuccessful on two separate occasions. The process server reported that
individuals at the 33rd Street Address evaded service and denied that the location was
Defendant’s address. (Doc. No. 18-2). Subsequently, Plaintiff’s process server attempted to serve
Defendant’s registered agent at an alternate address, 2859 Brigata Way, Ocoee, FL 34761.
However, this attempt was unsuccessful as well. (Doc. No. 18-2).
Unable to effect service on Defendant pursuant to FLA. STAT. § 48.081(1)(a), Plaintiff
availed himself of one of Florida's long-arm statutes and served Defendant pursuant to FLA.
STAT. § 48.181 through substituted service on Florida’s Secretary of State. Relying on this
substituted service, Plaintiff filed a Motion for Entry of a Clerk’s Default, and the Clerk entered
a default against Defendant. (Doc. Nos. 6, 7). Plaintiff then filed a Motion for Default Judgment,
and this Court entered a default judgment against Defendant on January 24, 2022, for statutory
damages under the FDCPA, the NCCAA, plus attorney fees and costs. (Doc. Nos. 11, 12).
Defendant now contests that valid service of process was effectuated and asks this Court
for relief from the judgment on the ground that lack of service of process makes the judgement
“Federal Rule of Civil Procedure 60(b) provides a procedure whereby, in appropriate
cases, a party may be relieved of a final judgment.” Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 863 (1988). Rule 60 permits a court to correct orders and provide relief
from judgment under the following circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect;
Case 3:21-cv-00260-MOC-DSC Document 20 Filed 11/21/22 Page 2 of 5
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
(6) any other reason that justifies relief.
FED. R. CIV. P. 60(b).
A Rule 60(b) motion must be made within a “reasonable time.” FED. R. CIV. P. 60(c). If a
petitioner satisfies this requirement, then he must show that his motion falls under one of the six
grounds set forth in Rule 60(b). Werner v. Carbo, 731 F.2d 204, 207 (4th Cir. 1984). Lastly,
when a party moves for relief from a default judgment, 60(b) is to be “liberally construed in
order to provide relief from the onerous consequences of defaults and default judgments.” Tolson
v. Hodge, 411 F.2d 123, 130 (4th Cir. 1969).
Federal Rule of Civil Procedure 4(h) describes the acceptable methods of service for a
corporation. FED. R. CIV. P. 4(h). 4(h) requires that service be made “(A) in the manner
proscribed by Rule 4(e)(1) for serving an individual; or (B) 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 and – if the agent is one authorized by statute
and the statute so requires – by also mailing a copy of each to the Defendant.” Id. Rule 4(e)(1)
permits service “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.”
FED. R. CIV. P. 4(e)(1).
Defendant argues that this Court should set aside the Default Judgment because Plaintiff
Case 3:21-cv-00260-MOC-DSC Document 20 Filed 11/21/22 Page 3 of 5
did not effect service of process on Defendant, and therefore this Court has no personal
jurisdiction over Defendant. Plaintiff responds that he properly effected service of process in
accordance with Rule 4(e)(1) and followed Florida state law. Specifically, Plaintiff contends that
Defendant was concealing its whereabouts or was otherwise nowhere to be found when this case
was filed. Florida state law provides for substitute service in such a situation, and therefore
Plaintiff properly resorted to substitute service on the Florida Secretary of State in accordance
with § 48.181 after he was unable to serve Defendant directly.
However, according to Florida state law, to properly effect substituted service of process
on a defendant through the Secretary of State via § 48.181, a plaintiff’s complaint must provide a
basis for jurisdiction pursuant to the language of § 48.181. Mecca Multimedia, Inc. v. Kurzbard,
954 So. 2d 1179, 1182 (Fla. Dist. Ct. App. 2007) (“The burden of pleading facts that support, as
a matter of law, the applicability of substituted service falls on the party seeking to invoke the
provisions of the long-arm statute.”). If the complaint does not “allege the jurisdictional
requirements prescribed by [§ 48.181]” then a plaintiff cannot properly effect substitute service
on a corporation in accordance with § 48.181. Green Emerald Homes, LLC v. Fed. Nat’l Mortg.
Ass’n, 224 So. 3d 799, 802 (Fla. Dist. Ct. App. 2017). In other words, Plaintiff’s Complaint must
allege that Defendant has concealed its whereabouts or was otherwise nowhere to be found
before relying on § 48.181 for service of process.
As Defendant notes, Plaintiff’s complaint did not plead a basis for jurisdiction pursuant to
the language of § 48.181, nor did it provide adequate jurisdictional facts to satisfy § 48.181.
Moreover, Plaintiff did not amend its complaint to allege the jurisdictional requirements required
by § 48.181. Here, Plaintiff failed to plead the required statutory prerequisites to rely on the
long-arm statute under § 48.181. Therefore, Plaintiff did not effect service of process
Case 3:21-cv-00260-MOC-DSC Document 20 Filed 11/21/22 Page 4 of 5
on Defendant. Because Plaintiff did not effect service of process on Defendant, this Court has no
personal jurisdiction over Defendant, and must grant relief from the default judgment on the
ground that lack of service of process makes the judgement void.
The Court further finds, however, that since Defendant is on actual notice of the lawsuit,
Plaintiff need not take any further actions to serve Defendant. Defendant shall file an Answer or
otherwise respond to the Complaint within 30 days of entry of this Order.
IT IS, THEREFORE, ORDERED that:
1. Defendant’s Motion for Relief from Judgement, (Doc. No. 14), is GRANTED.
Signed: November 18, 2022
Case 3:21-cv-00260-MOC-DSC Document 20 Filed 11/21/22 Page 5 of 5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?