Gorton et al v. Air & Liquid Systems Corp. et al
OPINION setting forth the reasons the motion to vacate default judgment 529 will be GRANTED. An appropriate order will be entered. Signed by Honorable Joy Flowers Conti on 1/7/2022. (McGee, Katie)
Case 1:17-cv-01110-JFC Document 549 Filed 01/07/22 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RHONDA J. GORTON, Personal
Representative for the Estate of THOMAS
D. GORTON, II, and in her own right,
Air & Liquid Systems Corporation
As Successor-by-Merger to Buffalo Pumps,
) Civ. Action No. 1:17-1110
Decedent Thomas Gorton (“decedent”), the husband of plaintiff Rhonda J. Gorton (“Ms.
Gorton”), developed mesothelioma, allegedly due to his occupational exposure to defendants’
asbestos-containing products. Ms. Gorton brought this lawsuit, which was removed to this court,
on behalf of her deceased husband’s estate and in her own right. Ms. Gorton reached settlement
agreements with many of the defendants in the litigation. On October 6, 2021, default judgment
was entered against defendant Warren Pumps, LLC (“Warren Pumps”) because it “failed to
appear, plead, or otherwise defend” in this case. (ECF No. 527.) Pending before the court is a
motion to vacate the default judgment (ECF No. 529) filed by Warren Pumps.
Warren Pumps argues, among other things, that the default judgment should be vacated
because Ms. Gorton did not properly serve the amended complaint upon Warren Pumps in
accordance with Federal Rule of Civil Procedure 4, and, under those circumstances, the entry of
default is void. Ms. Gorton argues in opposition that Warren Pumps was in default at the time
Ms. Gorton filed the amended complaint because Warren Pumps did not file a responsive
Case 1:17-cv-01110-JFC Document 549 Filed 01/07/22 Page 2 of 7
pleading to the original complaint, and, therefore, service of the amended complaints was not
required, pursuant to Federal Rule of Civil Procedure 5(a)(2).
Here, the record before this court shows that: (1) Ms. Gorton for the first time in the
amended complaint set forth a a wrongful death claim against defendants, including Warren
Pumps; and (2) Ms. Gorton did not properly serve Warren Pumps with either the amended
complaint or second amended complaint. Under those circumstances, Federal Rule of Civil
Procedure 5(a)(2) required Ms. Gorton to effectuate proper service of the amended complaint
upon Warren Pumps (even if Warren Pumps was in default for failing to respond to the original
complaint). 1 Based upon the foregoing, and as set forth fully in this opinion, the default
judgment entered against Warren Pumps is void and will be vacated. Warren Pumps’ motion to
vacate the default judgment will be granted.
Procedural History Relevant to the Motion to Vacate Default Judgment
On June 23, 2017, this diversity action was removed from the Dauphin County Court of
Common Pleas to the United States District Court for the Middle District of Pennsylvania. (ECF
No. 1.) Mr. Gorton and Ms. Gorton were the plaintiffs and named at least sixty-five defendants
in the complaint, including Warren Pumps. (Id. at 1-4.) The following six counts were asserted in
the complaint: (1) count I: products liability; (2) count II: breach of implied warranty; (3) count
III: negligence; (4) count IV: intentional conduct—fraudulent concealment; (5) count V:
premises liability (against only certain defendants); and (6) count VI: loss of consortium. (Id.) In
the complaint, it was alleged that the defendants caused Mr. Gorton to contract mesothelioma
Ms. Gorton was required to serve Warren Pumps with the amended complaint because it
set forth a new claim that was not set forth in the original complaint, i.e., a claim for wrongful
death. Fed. R. Civ. P. 5(a)(2). Under those circumstances, the court need not analyze whether
Ms. Gorton’s service of the original complaint was proper or whether Warren Pumps was in
default at the time Ms. Gorton filed the amended complaint. See discussion on page 6 infra.
Case 1:17-cv-01110-JFC Document 549 Filed 01/07/22 Page 3 of 7
when he was exposed to asbestos while employed by the defendants. Warren Pumps did not
respond to the complaint or otherwise have counsel enter an appearance on its behalf. Ms.
Gorton and Warren Pumps dispute whether Ms. Gorton properly served Warren Pumps with the
original complaint, and, thus, whether Warren Pumps was in default for failing to respond to the
Certain defendants engaged in motions practice with respect to the original complaint, and
the court permitted the plaintiffs to file an amended complaint. On or about March 6, 2018, Mr.
Gorton passed away. On July 9, 2018, Ms. Gorton filed an amended complaint alleging for the
first time that the negligent actions of the defendants, including Warren Pumps, caused Mr.
Gorton’s death, i.e., Ms. Gorton in the amended complaint for the first time set forth a claim of
wrongful death against the defendants. 2 There is no evidence before this court that Ms. Gorton
caused the amended complaint to be served upon Warren Pumps.
One court has explained:
“In order to recover in an action for wrongful death, the plaintiff must prove that
the death was caused by violence or negligence of the defendant. See 42 Pa.C.S. §
8301(a). Therefore, liability for wrongful death requires a determination that a
defendant's negligence caused the death.....
Ruehl v. S.N.M. Enterprises, Inc., No. 1:15-CV-168, 2017 WL 1682569, at *5 (M.D. Pa. Jan. 12,
2017), report and recommendation adopted, No. 1:15-CV-168, 2017 WL 1541814 (M.D. Pa.
Apr. 28, 2017). It is recognized in the asbestos context that when the plaintiff dies from his or
her mesothelioma injuries after the commencement of an action, a wrongful death claim based
upon the death is a “new claim” separate and distinct from claims asserted as survival actions.
See e.g., I. Horst et al. v. Union Carbide Corp., et al., No. 15CV1903, 2017 WL 11657237, at *5
(Pa. Com. Pl. June 30, 2017) (recognizing in the asbestos context that a claim for wrongful death
that accrues when a plaintiff dies from his or her mesothelioma injuries after the commencement
of the action is a “new claim”); see also Kaczorowski v. Kalkosinski, 184 A. 663, 664 (Pa. 1936)
(recognizing that a claim for wrongful death is independent of claims asserted on the decedent’s
behalf); Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 663 (Pa. Super. Ct. 2013) (same).
Here, in count three of the original complaint, Ms. Gorton and Mr. Gorton alleged that
defendants—including Warren Pumps—were negligent and caused Mr. Gorton to contract
mesothelioma. The amended complaint, which was filed after Mr. Gorton passed away, contains
Case 1:17-cv-01110-JFC Document 549 Filed 01/07/22 Page 4 of 7
After motions practice by certain defendants with respect to the first amended complaint
and the court’s resolution of a motion for leave to file a second amended complaint, Ms. Gorton
filed a second amended complaint. (ECF No. 422.) The second amended complaint included
amendments with respect to defendants in this case other than Warren Pumps and not relevant to
the motion currently pending before this court. There is no evidence of record that Ms. Gorton
caused the second amended complaint to be served upon Warren Pumps.
On October 6, 2021, Ms. Gorton filed a motion for entry of default judgment. (ECF No.
526.) On the same day, the Clerk of Court entered default judgment in favor of Ms. Gorton and
against Warren Pumps because Warren Pumps “failed to appear, plead, or otherwise defend” in
this case. (ECF No. 527.) On October 8, 2021, counsel for Warren Pumps first entered an
appearance on behalf of Warren Pumps. (ECF No. 528.) On the same day, Warren Pumps filed the
pending motion to vacate entry of default. (ECF No. 529.) On November 1, 2021, Ms. Gorton filed
a response in opposition to the motion. (ECF No. 540.) On November 10, 2021, Warren Pumps,
with leave of court, filed a reply brief in support of the motion. (ECF No. 547.) The motion to
vacate entry of default having been fully briefed is now ripe for disposition by the court.
A. Applicable Law
The issue before the court is whether the default judgement entered against Warren
Pumps for failing to respond in this case should be vacated. One court has explained:
Rule 55(c) of the Federal Rules of Civil Procedure provides that “[f]or good cause
shown the court may set aside an entry of default and, if a judgment by default has
survival claims, which are the same claims asserted by Mr. Gorton in the original complaint, Ms.
Gorton’s claims set forth in the original complaint, and a new wrongful death claim asserted by
Ms. Gorton based upon her husband’s death. Based upon the foregoing, the court concludes that
the amended complaint contained a new claim.
Case 1:17-cv-01110-JFC Document 549 Filed 01/07/22 Page 5 of 7
been entered, may likewise set it aside in accordance with Rule 60(b).” Pursuant
to Fed.R.Civ.P. 60(b)(4), “[o]n motion and upon such terms as are just, the court
may relieve a party ... from a final judgment” if “the judgment is void.”
A default judgment rendered by a court which lacked personal jurisdiction over the
defendant is void. Pennoyer v. Neff, 95 U.S. 714, 725–727 (1877). A defendant
may challenge the personal jurisdiction of the rendering court by attacking the
validity of the service of process. Stranahan Gear Co. v. NL Indus. Inc., 800 F.2d
53, 56–57 (3d Cir.1986). “Service of process refers to a formal delivery of
documents that is legally sufficient to charge the defendants with notice of a
pending action.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 699,
O'Donnell v. Shalayev, No. CIV.A.01-4721(JBS), 2004 WL 2958698, at *3–4 (D.N.J. Dec. 22,
2004). With respect to service of process, another court has explained:
An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably calculated, under
all circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.” Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950); see also Marks Law Offices, LLC v.
Mireskandari, 704 Fed. Appx. 171, 177 (3d Cir. 2017) (permitting service by an
alternative method where the court was satisfied that the alternative method
provided “notice reasonably calculated to apprise interested parties of the pendency
of the action and thus satisfied the requirements of the Due Process Clause”)
(internal quotations and citations omitted).
Federal Rule of Civil Procedure 4(e)(1) permits an individual to be served
by “following state law for serving 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). As this Court sits in Middle District of
Pennsylvania, the Pennsylvania Rules of Civil Procedure apply. Pennsylvania Rule
of Civil Procedure 404 authorizes, in relevant part, service of original process on
an individual outside Pennsylvania “(1) by a competent adult in the manner
provided by Rule 402(a); (2) by mail in the manner provided by Rule 403; [or] (3)
in the manner provided by the law of the jurisdiction in which the service is made
for service in an action in any of its courts of general jurisdiction[.]” Pa. R. Civ. P.
Betances v. AT&T, No. 3:20-CV-2239, 2021 WL 4256293, at *2 (M.D. Pa. Sept. 17, 2021).
Warren Pumps argues that the default judgment entered against it must be vacated as void
because Ms. Gorton did not properly serve the amended complaint upon Warren Pumps. Like in
Case 1:17-cv-01110-JFC Document 549 Filed 01/07/22 Page 6 of 7
Betances, this court must apply the Pennsylvania-state service rules in this case because this
court sits in Pennsylvania. There is no evidence of record that Ms. Gorton served Warren Pumps
with the amended complaint in compliance with the federal rules or Pennsylvania Rule of Civil
Procedure 404. Ms. Gorton argues, however, that she was not required to serve the amended
complaint upon Warren Pumps because Warren Pumps was in default for failing to respond to
the original complaint. Even if the court assumes that (1) Ms. Gorton properly served the original
complaint upon Warren Pumps, and (2) Warren Pumps was in default for failing to respond to
the original complaint, Ms. Gorton was required under Federal Rule of Civil Procedure 5(a)(2) to
serve the amended complaint upon Warren Pumps because Ms. Gorton set forth a new claim for
wrongful death against Warren Pumps in that pleading. Rule 5(a)(2) provides: “No service is
required on a party who is in default for failing to appear. But a pleading that asserts a
new claim for relief against such a party must be served on that party under Rule 4.” Fed.
R. Civ. P. 5(a)(2) (emphasis added). Ms. Gorton set forth a new claim for wrongful death in the
amended complaint and did not properly serve the pleading upon Warren Pumps. See Taylor
Farms Cal., Inc. v. Reg'l Source Produce, Inc., No. C 07-05068 JW, 2011 WL 6329914, at *1
(N.D. Cal. Nov. 29, 2011). 3 Under those circumstances, service was not proper, and the default
The court in Taylor succinctly explained:
Federal Rule of Civil Procedure 5 requires that a pleading filed after the original
complaint “must be served on every party.” Fed.R.Civ.P. 5(a)(1)(B). If a party is in
default for failing to appear, no service is required on that party. See Fed.R.Civ.P.
5(2). However, “a pleading that asserts a new claim for relief against [a party in
default] must be served on that party under Rule 4.” Id. Thus, although Rule 5 does
allow for service by first-class mail, service of a complaint which states a new claim
against a party in default must be made under Rule 4, and not Rule 5. See Emp.
Painters' Trust v. Ethan Enters., Inc., 480 F.3d 993, 999 (9th Cir.2007).
Taylor, 2011 WL 6329914, at *1.
Case 1:17-cv-01110-JFC Document 549 Filed 01/07/22 Page 7 of 7
judgment entered against Warren Pumps is void. Based upon the foregoing, the motion to vacate
default judgment will be granted, the default judgment will be vacated, and Warren Pumps will
be given an opportunity to respond to the second amended complaint.
A default judgment entered against a defendant is void if the court lacked personal
jurisdiction over the defendant because the defendant was not properly served with notice of the
action. Here, Ms. Gorton asserted a new wrongful death claim in the amended complaint. She
did not properly serve the amended complaint upon Warren Pumps. This court, therefore, did not
have personal jurisdiction over Warren Pumps when default judgment was entered against it.
Under those circumstances, the default judgment was void and Warren Pumps is entitled to relief
from that judgment under Federal Rule of Civil Procedure 60(b)(4). The motion to vacate default
judgment will be granted and the default judgment will be vacated. On or before January 24,
2022, Ms. Gorton shall cause the service of the second amended complaint upon Warren Pumps
in accordance with Federal Rule of Civil Procedure 4. Within 21 days of the date of service,
Warren Pumps shall respond to the second amended complaint in accordance with the Federal
Civil Rules of Procedure. An appropriate order will be entered.
BY THE COURT,
/s/ JOY FLOWERS CONTI
Joy Flowers Conti
Senior United States District Court Judge
Dated: January 7, 2022
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