Cunningham v. Select Student Loan Help LLC et al

Filing 141

REPORT AND RECOMMENDATION re 59 Amended Complaint. For the foregoing reasons, the Magistrate Judge makes the following recommendations as to whether Select Student Loan Help, LLC and Select Student Loan, Inc. were properly served with process and with other Court documents, including the partial entries of default and motion for default judgment. Signed by Magistrate Judge Joe Brown on 12/20/2016. (Attachments: # 1 Exhibit A - Electronic Articles, # 2 Exhibit B - Corporation In formation re Select Student Loan Help, LLC, # 3 Exhibit C - Select Student Loan Business Information, # 4 Exhibit D - LegalZoom Business Information)(xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CRAIG CUNNINGHAM,
Plaintiff,
v.
SELECT STUDENT LOAN HELP, LLC,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 3:15-cv-00554
Judge Trauger
Magistrate Judge Brown

To: The Honorable Aleta A. Trauger, United States District Judge
REPORT AND RECOMMENDATION
This matter was referred to the undersigned for two related issues, the first of which is
determining whether Defendants Select Student Loan Help, LLC and Select Student Loan, Inc.
have been properly served with the complaint and other Court documents, including the partial
entries of default and the motion for default judgment. (Doc. 33). Upon doing so, the Magistrate
Judge was requested to enter a Report and Recommendation as to the Plaintiff’s motion for
default judgement. (Doc. 33). The undersigned’s findings and recommendations are as follows:
(1) Service of process on Select Student Loan Help, LLC and Select Student Loan, Inc.
was not perfected under federal, Florida, California, or Tennessee State law. Should
this finding be adopted, the Magistrate Judge RECOMMENDS that the entries of
default (Docs. 12, 20) be VACATED and the Plaintiff be granted thirty (30) days in
which to re-serve these two Defendants or file corrected proofs of service and
establish that the individuals who signed the return receipts were authorized to accept
service of process on behalf of these two Defendants. Should the Plaintiff fail to
correct these deficiencies within the time limits set, the Magistrate Judge would
RECOMMEND dismissing the Plaintiff’s claims against these two Defendants
without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
(2) The motion for entry of default, the entry of default, and the motion for default
judgment were properly served on Select Student Loan Health, LLC. (Docs. 10, 13,
29).

1

(3) Select Student Loan, Inc. was properly served with the motion for entry of default but
was not properly served with the entry of default or motion for default judgment.
(Docs. 17, 21, 29).
(4) Select Student Loan Help, LLC was properly served copies of docket entries 12, 20,
29, 33, and 37, along with a docket sheet. (Doc. 38).
(5) Select Student Loan, Inc. was not properly served copies of docket entries 12, 20, 29,
33, and 37, along with a docket sheet. (Doc. 38).
I.

BACKGROUND

This civil action was commenced on May 12, 2015, when the Plaintiff filed a complaint
alleging that Defendants Select Student Loan Help, LLC, Cherise Calmese, Sara Arias, and
Select Student Loan, Inc. violated the Telephone Consumer Protection Act (“TCPA”) and Fair
Debt Collection Practices Act (“FDCPA”) through a series of unwelcome automated phone calls.
(Doc. 1). The Clerk of Court issued summons for the named Defendants on May 14, 2015. (Doc.
2).
On May 22, 2015, the Plaintiff filed proof of service as to Defendant Select Student Loan
Help, LLC. (Doc. 6). Proof of service as to Defendants Arias and Calmese were filed on June 9,
2015. (Docs. 8, 9). The Plaintiff thereafter moved for entry of default against these three
Defendants. (Doc. 10). The Clerk of Court entered default against Defendant Select Student
Loan Help, LLC, but denied the Plaintiff’s motion as to Defendants Arias and Calmese. (Doc.
12).
On August 25, 2015, the Plaintiff filed proof of service as to Defendants Calmese and
Select Student Loan, Inc. (Docs. 15, 16). He then moved for entry of default as to these two
Defendants. (Doc. 17). The Clerk of Court entered default against Defendant Select Student
Loan, Inc., but denied the motion for default against Defendant Calmese. (Doc. 20).

2

Upon entry of default against Defendants Select Student Loan Help, LLC and Select
Student Loan, Inc., the Plaintiff moved for default judgment against these Defendants and
requested a hearing on damages. (Doc. 29). The District Judge referred this matter to the
Magistrate Judge for a Report and Recommendation. (Doc. 33). On December 30, 2015, the
Magistrate Judge directed the Clerk of Court to serve by regular and certified mail copies of the
partial entries of default, the motion for default judgment, the referral order, the December 30,
2015 order, and a copy of the docket sheet, on Select Student Loan Help, LLC and Select
Student Loan, Inc. at the addresses where the Plaintiff served the motion for default judgment.
(Doc. 37). The Clerk of Court mailed the documents as directed, though the documents sent to
the corporate address were addressed to “Select Student Loan Help, Inc.” instead of “Select
Student Loan, Inc.” (Doc. 38) (emphasis added). The mail sent to Select Student Loan Help,
LLC was returned to the Court as undeliverable. (Docs. 42, 45).
The Plaintiff subsequently amended his complaint. (Doc. 59). As Defendants Select
Student Loan Help, LLC and Select Student Loan, Inc. did not respond to the Plaintiff’s motion
for default judgment, the Magistrate Judge directed the Plaintiff to file a motion for default
judgment in compliance with Rule 55(b) and terminated the earlier motion for default judgment
(Doc. 29). (Doc. 108). In accordance with the Magistrate Judge’s order, the Plaintiff filed a
revised motion for default judgment against these two Defendants. (Doc. 122). The Clerk of
Court denied the revised motion for default judgment. (Doc. 130). In part, the motion was denied
because it did not contain a certificate of service indicating that it was served on any defendant.
(Doc. 130).
With the Clerk of Court’s recent order, the referral to make a recommendation as to the
motion for default judgment is rendered moot. Accordingly, this Report and Recommendation is

3

limited to whether Defendants Select Student Loan Help, LLC and Select Student Loan, Inc.
were properly served with process and other Court documents.
II.

SERVICE OF PROCESS

A. THE DEFENDANTS
Select Student Loan Help, LLC is an inactive limited liability company registered in the
State of Florida. The Florida Department of State Division of Corporations website provides the
LLC’s electronic article of organization which list the following registered agent: United States
Corporation Agents, Inc., 13302 Winding Oak Court, A, Tampa, FL 33612. (Exhibit A). 1
Cheyenne Mosely signed as the registered agent. (Exhibit A). According to the State website, the
LLC’s principal and mailing address are 5670 Wilshire Blvd., #1800, Los Angeles, CA 90036.
(Exhibit B). 2
Select Student Loan, Inc. is an active California corporation located at 4201 Wilshire
Blvd. #623, Los Angeles, CA 90010. (Exhibit C). 3 The current registered agent for service of
process is LegalZoom.com, Inc., 101 N. Brand Blvd., 11th FL, Glendale, CA 91203. (Exhibit
C). Formerly, LegalZoom.com, Inc. could be served at 100 W. Broadway, Suite 100, Glendale,
CA 91210. (Exhibit D).
B. SERVICE OF PROCESS STANDARD
Where service has not been waived and service was not made by a United States marshal
or deputy marshal, the plaintiff must prove service through the server’s affidavit. Fed. R. Civ. P.

1

http://search.sunbiz.org/Inquiry/CorporationSearch/ConvertTiffToPDF?storagePath=COR%5C2014%5C0819%
5C60456076.tif&documentNumber=L14000129782 (last visited Dec. 20, 2016).

2

http://search.sunbiz.org/Inquiry/CorporationSearch/SearchResultDetail?inquirytype=EntityName&directionType=
Initial&searchNameOrder=SELECTSTUDENTLOANHELP%20L140001297820&aggregateId=flal-l140001297826cedc850-34ce-4c79-bc6b-6979bbf8b124&searchTerm=select%20student%20&listNameOrder=SELECT
STUDENTLOANHELP%20L140001297820 (last visited Dec. 20, 2016).
3

Available by search at https://businesssearch.sos.ca.gov/ (last visited Dec. 20, 2016).

4

4(l)(1). Here, there is no evidence that either Defendant waived service or was served by a
marshal. Proof of service must therefore be presented in a server’s affidavit.
Service of corporations and other business entities is governed by Rule 4(h) of the
Federal Rules of Civil Procedure. Where service is accomplished in a judicial district of the
United States, the following methods of service are available:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual [i.e.,
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]; 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 . . . .
Fed. R. Civ. P. 4(h)(1). Thus, service may be made in accordance with applicable state law, or
process may be “delivered” to an officer, managing or general agent, or other authorized agent.
C. PROCESS WAS NOT “DELIVERED” PURSUANT TO FEDERAL RULE 4(h)(1)(B)
Courts interpreting Rule 4(h)(1)(B) have explained that delivery means personal delivery,
not service by mail. Christian v. Fed. Home Loan Mortg. Corp., No. CV 13-13795, 2016 WL
1640459, at *2 (E.D. Mich. Apr. 26, 2016) (citing Dyer v. Wal-Mart Stores, Inc., 318 F. App’x
843, 844 (11th Cir. 2009); Larsen v. Mayo Med. Ctr., 218 F.3d 863, 868 (8th Cir. 2000); Etherly
v. Rehabitat Sys. of Michigan, No. 13-11360, 2013 WL 3946079, at *5 (E.D. Mich. July 31,
2013)); Collett v. Kennedy, Koontz & Farinash, No. 3:14-CV-552-TAV-HBG, 2015 WL
7254301, at *4 (E.D. Tenn. Aug. 14, 2015).
The Plaintiff attempted to serve Select Student Loan Help, LLC and Select Student Loan,
Inc. by certified mail. As service by mail is not “delivery” within the meaning of Rule
4(h)(1)(B), service was not properly made under this authority. The issue turns to whether
service of process was perfected under applicable state law.
5

For Select Student Loan Help, LLC, service by mail is only proper if permitted by the
State of Tennessee—where this Court is located, or in the State of Florida—where service was
attempted. See Fed. R. Civ. P. 4(e)(1), (h)(1)(A). Service of the Select Student Loan, Inc. by mail
is only proper if permitted by the State of Tennessee—where this Court is located, or in the State
of California—where service was attempted. See id.
D. PROCESS WAS NOT PROPERLY SERVED PURSUANT TO FLORIDA OR
CALIFORNIA STATE LAW
Absent a waiver of personal service, service of Select Student Loan Help, LLC by
certified mail does not comport with Florida law. “The Florida Rules of Civil Procedure provide
for service of process by certified mail, but only if the defendant agrees to waive personal
service.” Dyer, 318 F. App’x at 844 (citing Fla. R. Civ. P. 1.070(i); Transp. & Gen. Ins. Co. v.
Receiverships of Ins. Exch. of Americas, Inc., 576 So. 2d 1351, 1352 (Fla. Dist. Ct. App. 1991));
see also Alvarez v. Walt Disney Motion Pictures, No. 613CV1940ORL37TBS, 2014 WL
12617907, at *2 (M.D. Fla. Feb. 27, 2014) (citations omitted); Crenshaw v. City of Defuniak
Springs, No. 3:13CV50/MCR/EMT, 2013 WL 4046691, at *2 (N.D. Fla. Aug. 9, 2013) (citation
omitted).
Select Student Loan, Inc. was not served in accordance with California law. Service
within California may be made by mail, but service must include a specific notice and
acknowledgment of receipt which was not indicated here. See Cal. Civ. Proc. Code § 415.30;
Johansen v. Presley, No. 11-3036-JTF-DKV, 2013 WL 7868446, at *2-3 (W.D. Tenn. June 24,
2013), report and recommendation adopted, No. 11-CV-3036-JTF-DKV, 2014 WL 897332
(W.D. Tenn. Mar. 6, 2014), aff’d (Oct. 31, 2014).

6

E. SERVICE OF PROCESS WAS NOT PERFECTED UNDER TENNESSEE STATE
LAW
Service on defendants outside the State of Tennessee is governed by Rule 4.05 of the
Tennessee Rules of Civil Procedure. The rule provides:
(1) Whenever the law of this state authorizes service outside this state, the
service, when reasonably calculated to give actual notice, may be made:
(a) by any form of service authorized for service within this state
pursuant to Rule 4.04;
(b) in any manner prescribed by the law of the state in which service is
effected for an action in any of the courts of general jurisdiction in
that state;
(c) as directed by the court.
Tenn. R. Civ. P. 4.05(1).
Whether service outside the state is permitted in this federal question case is determined
by Tennessee’s long-arm statutes and principles of federal due process. AlixPartners, LLP v.
Brewington, 836 F.3d 543, 549 (6th Cir. 2016) (citation omitted); see Tenn. Code Ann. § 20-2201 et seq. Because the Court has not held an evidentiary hearing, only a prima facie showing of
jurisdiction must be found in the pleadings. Means v. United States Conference of Catholic
Bishops, 836 F.3d 643, 649 (6th Cir. 2016) (citation omitted).
Tennessee’s long-arm statute permits the exercise of personal jurisdiction over an out-ofstate defendant to the extent permitted by the constitutions of Tennessee and the United States.
Tenn. Code Ann. § 20-2-225(2). The “statute has been interpreted as coterminous with the limits
on personal jurisdiction imposed by the due process clause.” Bridgeport Music, Inc. v. Still N
The Water Pub., 327 F.3d 472, 477 (6th Cir. 2003) (quoting Payne v. Motorists’ Mut. Ins.
Companies, 4 F.3d 452, 455 (6th Cir. 1993)) (discussing a similarly worded long-arm statute).

7

Thus, the two-prong inquiry collapses into a single issue: whether requiring the
Defendants to defend this suit in the State of Tennessee comports with the due process clause.
Personal jurisdiction may be general—based on the Defendants’ contacts with the State of
Tennessee generally, or specific—based on the Defendants’ contacts with the State of Tennessee
that gave rise to the claims in this lawsuit. See Bird v. Parsons, 289 F.3d 865, 873-74 (6th Cir.
2002). Absent any indication that the Defendants have continuous and systematic contacts with
the State of Tennessee such that the Defendants are essentially at home in this forum, the
undersigned considers specific jurisdiction.
Three elements must be satisfied to establish specific personal jurisdiction over a
defendant:
First, the defendant must purposefully avail himself of the privilege of acting in
the forum state or causing a consequence in the forum state. Second, the cause of
action must arise from the defendant’s activities there. Finally, the acts of the
defendant or consequences caused by the defendant must have a substantial
enough connection with the forum state to make the exercise of jurisdiction over
the defendant reasonable.
Means, 836 F.3d at 649 (quoting S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th
Cir. 1968)).
Purposeful availment is found where the defendant’s actions proximately caused the
defendant’s contacts with the forum state. Id. (citation omitted). As opposed to random or
attenuated contacts with the forum state, the defendant’s actions should reasonably put the
defendant on notice that he or she could be haled into court there. Id. (citations omitted). For
example, in Schneider v. Hardesty, a Utah attorney purposefully availed himself to the privilege
of acting in Ohio when he wrote letters which would be sent to his client’s investors in Ohio
even though the attorney did not himself mail the letters. Schneider v. Hardesty, 669 F.3d 693,
696, 702-03 (6th Cir. 2012). On a similar note, the Sixth Circuit has “held previously that
8

purposeful availment may exist when a defendant makes telephone calls and sends facsimiles
into the forum state and such communications ‘form the bases for the action.’” Intera Corp. v.
Henderson, 428 F.3d 605, 616 (6th Cir. 2005) (quoting Neal v. Janssen, 270 F.3d 328, 332 (6th
Cir. 2001)).
In his first complaint and amended complaint, the Plaintiff alleges violations of the TCPA
and FDCPA based on receipt of unwelcome telephone calls. (Docs. 1, 59). The Plaintiff alleges
that the calls, numbering over 100, were made to the Plaintiff in the State of Tennessee. (Docs. 1,
59). The calls were allegedly made to two cell phones belonging to the Plaintiff, each with an
area code of “615.” (Doc. 59, p. 5 ¶ 26). Judicial notice is taken that this area code is assigned to
Davidson County, Tennessee. The Plaintiff alleged that the purpose of the calls was to “solicit[]
Tennessee residents to refinance their student loans.” (Doc. 1, p. 2 ¶ 7). The callers were
allegedly misled to believe “they were talking to the student loan giant Sallie Mae as opposed to
Select Student Loan Help, LLC.” (Doc. 1, p. 3 ¶ 12) (Doc. 59, pp. 7-8 ¶¶ 30, 36). One caller
“identified select student Loan [sic] as the company placing the calls.” (Doc. 1, p. 4 ¶ 14). The
Plaintiff additionally alleged that Defendant Select Student Loan Help and Select Student Loan,
Inc. have violated the FDCPA by failing to provide the required statutory disclosures. (Doc. 1, p.
4 ¶ 16) (Doc. 59, p. 8 ¶ 38). Taking these allegations as true at this stage in the litigation, the
undersigned finds a prima facie showing that Defendants Select Student Loan Help, LLC and
Select Student Loan, Inc. purposefully availed themselves to suit in the State of Tennessee for
claims arising out of their repeated telephone calls to Tennessee phone numbers. See Ott v.
Mortg. Inv’rs Corp. of Ohio, 65 F. Supp. 3d 1046, 1057–59 (D. Or. 2014), motion to certify
appeal denied sub nom. Ott v. Mortg. Inv’rs Corp., No. 3:14-CV-00645-ST, 2015 WL 1648702

9

(D. Or. Apr. 14, 2015) (denying motion to dismiss for lack of personal jurisdiction in a class
action brought under the TCPA where suit was brought where the telephone calls were received).
As to the second element, this is easily satisfied as the claims in the instant lawsuit arise
from the telephone calls allegedly placed to the Plaintiff in Tennessee. See Schneider, 669 F.3d
at 703 (quoting Bird, 289 F.3d at 875) (explaining that the “arising from” element is subject to a
“lenient standard” and was satisfied when claims were brought on account of letters sent to the
forum state).
The third element is met where exercise of jurisdiction is not unreasonable because the
defendant has sufficiently substantial connections with the forum. Id. If the first two elements are
met, “an inference of reasonableness arises” which will only be rebutted in an unusual case. Id.
(quoting Air Prod. & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544, 554 (6th Cir. 2007)).
The court considers “(1) the burden on the defendant; (2) the interest of the forum state; (3) the
plaintiff’s interest in obtaining relief; and (4) other states’ interest in securing the most efficient
resolution of the policy.” Id. at 703-04 (quoting Air Prod. & Controls, Inc., 503 F.3d at 554-55).
Considerations of reasonableness do not militate against a prima facie finding of personal
jurisdiction in this instance. Litigation in a foreign state will certainly impose a burden on the
Defendants. With the increasing use of electronic means of communications, such as telephonic
conferences with the Court, the cost and burden of proceeding in the State of Tennessee is
lessened. The State of Tennessee certainly has an interest in protecting its residents from injuries
caused by out-of-state actors. See Intera Corp., 428 F.3d at 618. As the initiator of this suit, the
Plaintiff presumably has an interest in obtaining relief. Last, seeing as the claims in this case
arise under federal law, maintenance of suit in this state does not raise sovereignty concerns.

10

Through his first complaint and amended complaint, the Plaintiff has made a prima facie
showing of personal jurisdiction over the two Defendants at issue. As personal jurisdiction may
be exercised under Tennessee Code Annotated § 20-2-225, service may be made outside of the
State of Tennessee pursuant to the Tennessee Rules of Civil Procedure. See Tenn. Code Ann. §
20-2-224.
The Tennessee Rules of Civil Procedure permit service by registered return receipt or
certified return receipt mail. See Tenn. R. Civ. P. 4.04(3)-(4), (10); Tenn. R. Civ. P. 4.05(1)(a),
(3)-(4). When a defendant is served by mail, the plaintiff must file the original summons
specifying the date of service and receipt, an affidavit from the service provider, and a return
receipt. Tenn. R. Civ. P. 4.03(2).
Service of process by mail is complete if the return receipt is signed by the defendant or a
person designated by Rule 4.04 or by statute. Id.; see Genesis Diamonds, LLC v. John Hardy,
Inc., No. 3:15-CV-01093, 2016 WL 3478915, at *2-6 (M.D. Tenn. June 27, 2016) (finding that
the plaintiff did not meet its burden of showing proper service of process where the signer of the
return receipt was not proven to have authority to accept service of process); Treadway v.
California Prod. Corp., No. 2:13-CV-120, 2013 WL 6078637, at *3 (E.D. Tenn. Nov. 19, 2013)
(citation omitted) (“According to the plain language of Rule 4.03(2) . . . service [is] not
‘complete’ unless the signatory of the return receipt was ‘a person designated by Rule 4.04.’”);
Grp. Indep. Sales Org., Inc. v. Teleservices, Inc., No. 2:09-CV-02231, 2009 WL 3100590, at *3
(W.D. Tenn. Sept. 23, 2009) (citation omitted) (holding that service was not effected where the
plaintiff did not establish that the individual who signed the return receipt was the defendant’s
designated agent for service of process).

11

Though Rule 4.05(5) states that “[s]ervice by mail is complete upon mailing,” the
requirements in Rule 4.03(2) must nevertheless be satisfied to establish proper service of
process. Amresco Indep. Funding, LLC v. Renegade Mountain Golf Club, LLC, No.
E201401160COAR3CV, 2015 WL 1517921, at *2 (Tenn. Ct. App. Mar. 31, 2015) (discussing
lower court’s ruling that service by mail pursuant to Rule 4.05 must also comply with Rule
4.03(2)); see also Massey v. Hess, No. 1:05-CV-249, 2006 WL 2370205, at *2-3 (E.D. Tenn.
Aug. 14, 2006) (finding that service was not complete where service pursuant by Rule 4.05 was
not established pursuant to Rule 4.03(2)). Actual notice of a lawsuit is no substitute for proper
service of process. Hall v. Haynes, 319 S.W.3d 564, 572 (Tenn. 2010) (citations omitted).
The following individuals may receive service of process on behalf of business entities:
(3) Service by mail upon a corporation shall be addressed to an officer or
managing agent thereof, or to the chief agent in the county wherein the action
is brought, or by delivering the copies to any other agent authorized by
appointment or by law to receive service on behalf of the corporation.
(4) Service by mail upon a partnership or unincorporated association (including a
limited liability company) that is named defendant under a common name
shall be addressed to a partner or managing agent of the partnership or to an
officer or managing agent of the association, or to an agent authorized by
appointment or by law to receive service on behalf of the partnership or
association.
Tenn. R. Civ. P. 4.05(3)-(4); see also Tenn. R. Civ. P. 4.04(3)-(4).
In Tennessee, “registered agents, individual or corporate, have implied authority to
appoint subagents.” Rubio v. Precision Aerodynamics, Inc., 232 S.W.3d 738, 743-44 (Tenn. Ct.
App. 2006). The Rubio court explained:
If a corporation is designated to serve as [a corporation’s] registered agent, the
registered agent must, as a matter of necessity, appoint others to serve as
subagents to fulfill the purpose of the registered agent statute, which is to receive
service of process on behalf of the defendant corporation. It must therefore be
anticipated that a registered agent may authorize subagents to perform and fulfill
its responsibilities as the registered agent.
12

Id. at 743. Determining whether an individual is an authorized subagent is a fact-intensive
inquiry. For example, in Rubio, the defendant’s registered agent for service of process was a
single attorney. Id. at 740. The plaintiff’s process server placed the summons and complaint in
the hands of the attorney’s secretary. Id. The process server’s unrebutted affidavit reflected that
the secretary had represented she was authorized to accept service on the attorney’s behalf, she
had done so on numerous occasions in the past, and she would deliver the summons and
complaint to the attorney. Id. Though the defendant had not expressly authorized the secretary to
receive process on its behalf, service was valid because the attorney had implied authority to
appoint subagents and had appointed his secretary as a subagent. Id. at 741-44. Taken to the
other extreme, the Tennessee Supreme Court concluded that “that a corporate agent with the
authority to sign for and receive the corporation’s certified mail does not, without more, qualify
as an agent authorized by appointment to receive service of process on behalf of a corporate
defendant.” Hall, 319 S.W.3d at 583-84.
The Plaintiff has not established proper service of process on Select Student Loan Help,
LLC. First, the proof of service does not specify when process was put in the mail. See Tenn. R.
Civ. P. 4.03(2). Second, the return receipt does not clearly identify that the individual who signed
the return receipt was authorized to accept service of process for this Defendant. The return
receipt and proof of service submitted show that the service packet was sent by certified mail
return receipt requested to United States Corporation Agents, Inc., 13302 Winding Oak, Unit
A, Tampa, FL 33612 and was signed for by Sherry Vance. (Doc. 6). The return receipt does not
identify Sherry Vance’s relationship to United States Corporation Agents, Inc. Although the
return receipt contains two boxes next to the signature line titled “agent” and “addressee,” Sherry
Vance marked neither box. Without additional information, the Magistrate Judge is not able to

13

conclude that Sherry Vance is “a partner or managing agent of the partnership or to an officer or
managing agent of the association, or to an agent authorized by appointment or by law to receive
service on behalf of the partnership or association.” See Tenn. R. Civ. P. 4.04(3); Tenn. R. Civ.
P. 4.05(4); Alamo Home Fin., Inc. v. Duran, No. 13-14-00462-CV, 2015 WL 4381091, at *5
(Tex. App. July 16, 2015) (noting that the receipt of service on a company was signed for by an
individual whose connection to the company was unknown and the individual did not check
“agent” or “addressee” on the return receipt); see also Collett, No. 3:14-CV-552-TAV-HBG,
2015 WL 7254301, at *1-5 (finding service of process deficient where part-time secretary
without authority signed for receipt of service and process was issued to the law firm in general
and not a specific partner). Service of process on Select Student Loan Help, LLC has not been
perfected under Tennessee State law.
For these same reasons, the Plaintiff did not establish proper service of process on Select
Student Loan, Inc. First, the process server did not identify the date on which process was
mailed. See Tenn. R. Civ. P. 4.03(2). Second, the return receipt does not clearly identify that the
individual who signed the return receipt was authorized to accept service of process for this
Defendant. The Plaintiff served Select Student Loan, Inc. through certified mail return receipt
requested addressed to Legal Zoom Inc., 100 West Broadway, Ste. 100, Glendale, CA 91210.
(Doc. 16). However, the signature on the receipt is illegible, and neither “agent” nor “addressee”
is marked on the form. From this, the Magistrate Judge cannot conclude that the recipient was
authorized to accept service of process on the company’s behalf. See Tenn. R. Civ. P. 4.04(4);
Tenn. R. Civ. P. 4.05(3). Service of process on Select Student Loan, Inc. has not been perfected
under Tennessee State law.

14

With these findings, the Magistrate Judge RECOMMENDS that the entries of default
entered against these two Defendants (Docs. 12, 20) be VACATED.
Where a plaintiff has not properly served the defendant within 90 or 120 days after filing
the complaint 4 the court, on motion or by its own initiative after giving notice to the plaintiff,
must dismiss the action without prejudice or order the plaintiff to perfect service by a specified
date. Fed. R. Civ. P. 4(m). The court must extend service deadlines upon a showing of good
cause for failing to perfect timely service. Id. Here, the Plaintiff has not identified good cause for
failing to timely serve these two Defendants. As the Plaintiff is pro se, the Magistrate Judge
would RECOMMEND granting the Plaintiff thirty (30) days in which to rectify the errors
found in the proofs of service or alternatively re-serve these two Defendants. Specifically, the
Plaintiff should ensure that the proofs of service identify the dates on which service of process
was mailed to these two Defendants. The Plaintiff should also establish that the individuals who
signed the return receipts were authorized to accept service on these Defendants’ behalves.
Should the Plaintiff fail to perfect service by that deadline, the Magistrate Judge would
RECOMMEND dismissing the Plaintiff’s claims against Defendants Select Student Loan Help,
LLC and Select Student Loan, Inc. without prejudice pursuant to Rule 4(m).
III.

SERVICE OF COURT DOCUMENTS

Service of pleadings and other papers after the original complaint is governed by Rule 5
of the Federal Rules of Civil Procedure. Generally, written motions must be served on the
parties. Fed. R. Civ. P. 5(a)(1)(D). Where a party is in default for failing to appear, the defaulted
party need not be served unless the plaintiff sets forth a new claim of relief against the party. Id.
5(a)(2). Service may be accomplished through a variety of methods including but not limited to
4

At the time the Plaintiff filed his complaint, Rule 4(m) granted plaintiffs 120 days in which to perfect service. The
current version of the rule permits 90 days in which to perfect service. Regardless of the version applied, the
Plaintiff did not perfect service on these two Defendants within either time period.

15

hand delivery, leaving it the person’s office or dwelling, or mailing it to the person’s last known
address. Id. 5(b)(2). Where service is accomplished by mailing the paper to the party’s last
known address, service is complete once the document is placed in the mail. Id. 5(b)(2)(C). This
holds true even where mail is returned to the sender. See Tu My Tong v. Shapiro, No. CIV 150682 JB/LAM, 2016 WL 1729531, at *5 (D.N.M. Mar. 24, 2016); Afzal v. Mouton, No. CIV.A.
14-2786, 2015 WL 2169529, at *1 n.1 (E.D. La. May 8, 2015), appeal dismissed (Nov. 16,
2015); Williams v. Montesi’s Supermarket, No. 2:13-2787-SHL-DKV, 2014 WL 4199541, at *5
(W.D. Tenn. Aug. 25, 2014); Smith v. Metrish, No. 2:07-CV-203, 2010 WL 3655784, at *1
(W.D. Mich. Sept. 15, 2010).
The motion for default, entry of default, and motion for default judgment were properly
served on Select Student Loan Help, LLC. The Plaintiff certified that he served a copy of the
motion for entry of default and motion for default judgment through USPS first class mail on
Select Student Loan Help LLC, 5670 Wilshire Blvd., #1800, Los Angeles, CA 90036. (Docs.
10, 29). The Clerk of Court served the partial entry of default on Select Student Loan Help, LLC
at the same address. (Docs. 12, 13). According to the Florida Secretary of State website, this is
the LLC’s principal and mailing address. (Exhibit B).
Select Student Loan, Inc. was properly served with the motion for entry of default, but
not the order entering default or the motion for default judgment. The Plaintiff certified that he
served the motion for entry of default against Select Student Loan, Inc. by USPS first class mail
on Select Student Loan Inc., 4201 Wilshire Blvd., #623, Los Angeles, CA 90010. (Doc. 17).
According to the California Secretary of State’s website, this is Select Student Loan, Inc.’s
mailing address. (Exhibit C). The partial entry of default was served by USPS certified mail on
Select Student Loan Help LLC, 4201 Wilshire Boulevard #623, Los Angeles, CA 90010.

16

(Docs. 20, 21) (underline added). Additionally, the Plaintiff’s motion for entry of default
judgment was mailed to Select Student Loan Help, Inc., 4201 Wilshire Blvd., #623, Los
Angeles, CA 90010. (Doc. 29) (underline added). The partial entry of default and motion for
entry of default judgment were sent to the proper physical address, but they were directed to the
wrong addressee.
The Magistrate Judge directed the Clerk of Court to serve by regular and certified mail
copies of docket entries 12, 20, 29, 33, and 37, along with a docket sheet. (Doc. 37). The
documents were mailed to Select Student Loan Help, LLC, 5670 Wilshire Blvd., #1800, Los
Angeles, CA 90036 and Select Student Loan Help, Inc., 4201 Wilshire Blvd., #623, Los
Angeles, CA 90010. (Doc. 38) (underline added). The mail sent to Select Student Loan Help,
LLC was returned as undeliverable. (Docs. 42, 45). As this is the last known address for Select
Student Loan Help, LLC, service was completed once the documents were put in the mail. See
Fed. R. Civ. P. 5(b)(2)(C). Select Student Loan, Inc. was again not properly served because the
mail was not addressed to the proper business entity.
IV.

RECOMMENDATION

For the foregoing reasons, the Magistrate Judge makes the following recommendations as
to whether Select Student Loan Help, LLC and Select Student Loan, Inc. were properly served
with process and with other Court documents, including the partial entries of default and motion
for default judgment:
(2) Service of process on Select Student Loan Help, LLC and Select Student Loan, Inc.
was not perfected under federal, Florida, California, or Tennessee State law. Should
this finding be adopted, the Magistrate Judge RECOMMENDS that the entries of
default (Docs. 12, 20) be VACATED and the Plaintiff be granted thirty (30) days in
which to re-serve these two Defendants or file corrected proofs of service and
establish that the individuals who signed the return receipts were authorized to accept
service of process on behalf of these two Defendants. Should the Plaintiff fail to
correct these deficiencies within the time limits set, the Magistrate Judge would
17

RECOMMEND dismissing the Plaintiff’s claims against these two Defendants
without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
(2) The motion for entry of default, the entry of default, and the motion for default
judgment were properly served on Select Student Loan Health, LLC. (Docs. 10, 13,
29).
(3) Select Student Loan, Inc. was properly served with the motion for entry of default but
was not properly served with the entry of default or motion for default judgment.
(Docs. 17, 21, 29).
(4) Select Student Loan Help, LLC was properly served copies of docket entries 12, 20,
29, 33, and 37, along with a docket sheet. (Doc. 38).
(5) Select Student Loan, Inc. was not properly served copies of docket entries 12, 20, 29,
33, and 37, along with a docket sheet. (Doc. 38).
The parties have fourteen (14) days after being served with a copy of this Report and
Recommendation (“R&R”) to serve and file written objections to the findings and
recommendation proposed herein. A party shall respond to the objecting party’s objections to
this R&R within fourteen (14) days after being served with a copy thereof. Failure to file specific
objections within fourteen (14) days of receipt of this R&R may constitute a waiver of further
appeal. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985).
Entered this 20th day of December, 2016.
/s/ Joe B. Brown
Joe B. Brown
United States Magistrate Judge

18