Woolery et al v. Hardin County General Hospital et al

Filing 21

ORDER DENYING PLAINTIFF'S MOTION 11 FOR DEFAULT JUDGMENT AND SETTING ASIDE ENTRY OF DEFAULT - Pla has 120 das from entry of this order to serve copy of complaint and summons on Defts. Signed by Chief Judge J. Daniel Breen on 5/19/2015. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
Eastern Division
______________________________________________________________________________
PAUL KEITH WOOLERY, individually and
on behalf of all others similarly situated,
Plaintiff,
v.

No. 15-1070

HARDIN COUNTY GENERAL HOSPITAL
and HARDIN MEDICAL CENTER,
Defendants.

ORDER DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT AND
SETTING ASIDE ENTRY OF DEFAULT

Before the Court is the April 29, 2015 motion for default judgment brought by the
Plaintiff, Paul Keith Woolery (“Woolery”), individually and on behalf of all others similarly
situated. (Docket Entry (“D.E.”) 11.) Defendants, Hardin County General Hospital and Hardin
Medical Center, filed a response, and Plaintiff’s attorney submitted a reply affidavit. (D.E. 12,
17.) For the reasons discussed below, the motion is DENIED and the entry of default is SET
ASIDE.
Background
On March 30, 2015, Woolery filed a complaint alleging violations of the Emergency
Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (“EMTALA”), on behalf of
himself and a purported class of similarly situated individuals. (D.E. 1.) On March 31, 2015,
Plaintiff mailed copies of the complaint and summons to the Defendants’ registered agent and
Chief Executive Officer, Nicholas P. Lewis (“Lewis”), via first-class certified United States mail

with return receipt requested. (D.E. 11-1 at 3–4.) The mailings were signed for by “M. Terry”
on April 2 and 6, 2015. (Id.) After waiting twenty-one days, and because no responsive
pleading had been filed, Plaintiff obtained an entry of default from the Clerk’s office on April 28,
2015. (D.E. 9–10.) On April 29, 2015, Plaintiff moved for default judgment. (D.E. 11.) On
May 1, 2015, Defendants, through counsel, responded to the motion. (D.E. 12.) The Court
conducted a telephonic hearing on May 8, 2015.
Law and Analysis
I.

Setting Aside Entry of Default
Rule 55 of the Federal Rules of Civil Procedure states “[t]he court may set aside an entry

of default for good cause, and it may set aside a default judgment under Rule 60(b).” Fed. R.
Civ. P. 55(c). A showing of “good cause” requires the court to consider three factors: (1)
whether the defendant’s culpable conduct led to the default; (2) whether the defendant can offer
a meritorious defense; and (3) whether the plaintiff will suffer prejudice from setting aside the
default. United States v. $22,050.00 in U.S. Currency, 595 F.3d 318, 324 (6th Cir. 2010).
However, if there was defective service of process, the court “need not weigh the three factors,”
but must instead set aside the entry of default. O.J. Distrib., Inc. v. Hornell Brewing Co., 340
F.3d 345, 355 (6th Cir. 2003).
Hardin County General Hospital 1 is a quasi-governmental entity created by a Private Act
of the Tennessee legislature. Under Rule 4 of the Federal Rules of Civil Procedure, a plaintiff
can serve a local governmental entity by “delivering a copy of the summons and of the complaint
to its chief executive officer,” or by “serving a copy of each in the manner prescribed by that
state’s law for serving a summons or like process on such a defendant.” Fed. R. Civ. P.

1

In his affidavit, Lewis stated that the Hardin Medical Center is not a separate corporate entity, but an
assumed name of Hardin County General Hospital. (Aff. of Nicholas P. Lewis (“Lewis Aff.”) ¶ 2.)

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4(j)(2)(A)–(B). Rule 4.04 of the Tennessee Rules of Civil Procedure provides that service of
process on a governmental or quasi-governmental entity2 can be completed “by delivering a
copy of the summons and of the complaint to any officer or managing agent thereof.” Tenn. R.
Civ. P. 4.04(9). Further, “[i]f the defendant to be served is an individual or entity covered by
subparagraph . . . (9) of this rule, the return receipt mail shall be addressed to an individual
specified in the applicable subparagraph.” Tenn. R. Civ. P. 4.04(10). However, “[s]ervice by
mail shall not be the basis for the entry of a judgment by default unless the record contains a
return receipt showing personal acceptance by the defendant or by persons designated by Rule
4.04 or statute.” Id.
In this case, Lewis related that M. Terry was not an authorized agent, and did not have
authority to accept service of process on Defendants’ behalf. (Lewis Aff. ¶ 3.) Based on the
return receipts submitted by Plaintiff, neither Defendant was served pursuant to Fed. R. Civ. P. 4
or Tenn. R. Civ. P. 4.04. Therefore, the entry of default is SET ASIDE and the motion for
default judgment is DENIED.
II.

Federal Rule of Civil Procedure 5
Defense counsel maintains that they should have been provided copies of the complaint,

summons, and motions filed in this matter. (D.E. 12 at 4–5.) Rule 5 of the Federal Rules of
Civil Procedure states that “[i]f a party is represented by an attorney, service under this rule must
be made on the attorney unless the court orders service on the party.” Fed. R. Civ. P. 5(b)(1).
However, Plaintiff’s counsel was under no obligation to send a copy of the complaint and
summons to defense counsel because Rule 5 does not apply to service of initial pleadings. See
Fed. R. Civ. P. 5(a) (listing the types of documents that must be served pursuant to Rule 5). As

2

Tenn. R. Civ. P. 4.04(6)–(8) sets forth the manner in which process may be served on the State of
Tennessee, Tennessee counties, and Tennessee municipalities.

3

for the motions for default and default judgment, Plaintiff mailed a copy of each to Lewis, which
satisfies the service requirements of Rule 5. See Fed. R. Civ. P. 5(b)(2)(C).
While there is limited case law addressing this issue, the Court does not find that Rule 5
of the Federal Rules of Civil Procedure requires a plaintiff to provide copies of pleadings and
other papers to parties that have not formally appeared in the litigation. See 4B Charles Alan
Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus, Adam N. Steinman, Federal
Practice & Procedure § 1145 (4th ed. 2015) (“Federal Rule of Civil Procedure 5(a), which
requires service of the papers in an action on all parties, must be read in conjunction with Rule
5(b), which identifies who is to receive the papers and defines the manner in which service is to
be made.”); United States EEOC v. Guardsmark, LLC, No. H-09-3062, 2010 WL 5391269, at *2
(S.D. Tex. Dec. 22, 2010) (“A party must appear in a case in order to be served pursuant to Rule
5.”).
According to the docket, when Plaintiff submitted his motions, no attorney had filed a
notice of appearance on behalf of the Defendants. The only notice Plaintiff received was a
January 21, 2015 letter from defense counsel stating that they were representing the Defendants.
(D.E. 14 at 5–6.) Plaintiff’s attorney contends that he never agreed to send any copies to defense
counsel, and decided to serve the complaint and summons pursuant to Rule 4 of the Federal
Rules of Civil Procedure. (Aff. of Thomas J. Long (“Long Aff.”) ¶¶ 10–11, 15, D.E. 17-1.)
Regardless, Defendants are now formally represented by counsel. Plaintiff must either serve the
Defendants as set forth under Fed. R. Civ. P. 4 and Tenn. R. Civ. P. 4.04, or inquire as to
whether defense counsel will accept service on their clients’ behalf. 3

3

The Court acknowledges Plaintiff’s concern raised during the telephonic hearing that clever defendants
might avoid service of process via registered mail by directing their administrative staff to sign the return receipt.
However, Rule 4 of the Federal Rules of Civil Procedure allows for personal service as an alternative to service by
mail.

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Conclusion
Plaintiff’s motion is DENIED and the entry of default is SET ASIDE. Plaintiff has 120
days from the entry of this order to serve a copy of the complaint and summons on Defendants as
required by Fed. R. Civ. P. 4 and Tenn. R. Civ. P. 4.04.
IT IS SO ORDERED this the 19th day of May, 2015.

/s J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

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