UNITED STATES OF AMERICA v. ZOTTER

Filing 14

MEMORANDUM and ORDER granting 10 MOTION to Set Aside and Vacate 7 Clerk's Entry of Default and Default Judgment and directing Clerk to reopen case; 8 MOTION to Dismiss denied as moot; Plaintiff directed to serve defendant within 20 days of entry of this order. Signed by Chief Judge Gary L. Lancaster on 5/9/11. (map)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

Civil Action No. 11 0002

CRAIG S. ZOTTER,
Defendant.
MEMORANDUM
Gary L. Lancaster,
Chief Judge.

May

i,

2011

This is a breach of contract action to collect unpaid
student loans.
on January

The United States of America filed a complaint

3,

2011.

On March

14,

2011,

failed to file a responsive pleading,

with

Zotter

having

the government asked the

Clerk of Court to enter default and default judgment for a sum
certain against Zotter in the amount of $127,199.85
&

7].

[doc. nos. 6

On the same day that the Clerk entered default judgment

against him,

Zotter filed a motion to dismiss

[doc. no. 8].

He

then filed a motion to set aside the Clerk's entry of default
and default

judgment

[doc.

no.

10].

In both filings,

Zotter

raised the defense of insufficient service of process.
Zotter
residence

acknowledges

that

at

Ridge

in

401

Avenue

a

person

Pittsburgh,

came

to

Pennsylvania

his
at

10:00 in the evening on February 15, 2011 in an attempt to serve
him.

Zotter contends that he did not answer the door, but that

another person did and told the process server that he was not
Craig Zotter.
the

According to Zotter the process server then left

residence,

However,

taking

the

the next morning,

papers

to

be

served

with

her.

another person living in the house

discovered the summons placed between the front door and storm
door of the house.
indicates

that

The Affidavit of Service filed in this case

Tonya

Weimer

personally

handed

a

copy

of

the

complaint and summons to Zotter himself at the 401 Ridge Avenue
residence

on

February

IS,

2011

[doc.

contradicting

Zotter's

recitation

of

no.

3].

the

Apart

facts,

from

there

are

pending

is

several irregularities on the face of the Affidavit.
First,
identified

as

PENNSYLVANIA."
Second,
served,

the

the

court

"THE

in

which

DISTRICT

this

COURT

case

OF

COUNTY

ALLEGHENY

That is, of course, not the name of this court.
Affidavit

states

not

that

Zotter

but that "I attempted to serve CRAIG S.

statement

is

contradicts

the

Affidavit's

was

actually

ZOTTER.

This

II

identification

of

the

method of service as "handing a copy to the Defendant(s)".
Third,

the Affidavit describes Zotter as a

year old male wi th grey hair.
1998,

to 60

It is possible that in 1995 to

when the student loans were disbursed,

Zotter was in his

forties, making him a man in his late fifties now.
government never contends

56

in its briefing that

was served, in direct conflict with the Affidavit.
2

However, the
Zotter himself
Instead, the

government
served"

argues

that

service

was

valid because

is identified by "physical description.

the

"person

While it

II

possible to effectuate service at a defendant/s home by leaving
a

copy of

asserts

the

that

papers

the

with

method

an

of

adult

resident/

service

was

the

personal

Affidavit
service

on

Zotter/ not service on a resident of Zotter/s home. Fed. R. Civ.
P.

4 (e) (2) (B) .

Given the other irregularities in the Affidavit

and Zotter/s contention that he was not the one who answered the
door on February 15 th / the physical description of the defendant
in the Affidavit raises concerns.
In
service/

response

the

to

government

Zotter/s
states

challenge

only

that

to

the

of

Affidavit

"the

proof

of

Service is proper on its face and identifies the person served
by

a

physical

description//

[doc.

no.

13

at

3].

The

party

asserting the validity of service bears the burden of proof on
that

issue.

Grand

Entertainment

Group/

Ltd.

Sales/ Inc./ 988 F.2d 476/ 488 (3d Cir. 1993)
Wright and Arthur R. Miller/
§

1083

(3 rd

ed. ) ) .

The
face/

Affidavit

on

summary.

government

has

either

attaching

discrepancies/

by

Star

Media

(citing Charles A.

4A Federal Practice and Procedure/

irregularities
The

its

v.

and

of

Service

contradicts

failed

to

Zotter/s

address

sworn

contains
factual

any of

testimony

from

these
Ms.

Weimer to its briefing/ or by seeking permission from the court
to amend the Affidavit of Service.
3

Fed.

R.

Ci v .

P.

4 (1) (3) .

Therefore

we find that the government has failed to satisfy its

I

burden to prove that service in this case was proper.
A default

judgment

entered

when

there

has

been

no

proper service of the complaint is improper and void l and will
be

set

aside

60 (b) (4)
1298 1

i

on

that

basis

Petrucelli v.

1303-04

(3d

Fed.

R.

Bohri I1ger and Ratzinger

Cir.

Laurinburg OilCompOf

alone.

1995)

(citing

Civ.
GMBH

I

Gold

Inc' l 756 F.2d 141 18-19

P.
I

Kist l

55(c)1

46 F. 3d
Inc.

v.

(3d Cir. 1985)).

As suchl we need not address the other arguments made by Zotter
in his motion to vacate.

See Gold Kist l 756 F.2d at 19.

We also need not reach the merits of Zotterls motion
to dismiss.

As service was never properly made

duty to file a responsive pleading.

I

Zotter had no

We will order that service

be made within a specified time by the government in accordance
with

Federal

served l

Rule

of

Civil

Zotter will be able

Procedure
to

file

a

4(m).

Once

properly

responsive pleading

in

whatever format he now deems appropriate.
An appropriate

order will be filed contemporaneously

with this memorandum.

4

· .
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

Civil Action No. 11-0002

CRAIG S. ZOTTER,

Defendant.

ORDER
AND

NOW,

this

4

day

of

May,

2011,

it

is

HEREBY

ORDERED that Zotter's motion to set aside the Clerk's entry of
default and default

judgment

[doc.

no.

10J

is GRANTED and that

the Clerk is directed to reopen this case;
It is FURTHER ORDERED that Zotter's motion to dismiss
[doc. no. 8J is DENIED AS MOOT; and
It

is

FURTHER

ORDERED

that

The

United

America is directed to serve Zotter wi thin twenty

States

(20)

of

days of

the entry of this Order on the court's docket.

O/f~
, C. J.

--------~~--------

cc:

All Counsel of Record