Douglas v. Pilgrim Senior Citizens Housing Development Corporation
Filing
13
MEMORANDUM AND ORDER GRANTING 9 MOTION to Vacate 7 Final Judgment. ORDER REOPENING CASE. Case reopened on 8/9/2012. TERMINATING 10 Unopposed MOTION for Extension of Time to Respond to Defendant's Motion to Vacate Judgment.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
VANESSA DOUGLAS,
Plaintiff,
v.
PILGRIM SENIOR CITIZENS HOUSING
DEVELOPMENT CORPORATION ,
Defendant.
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION H-11-3637
MEMORANDUM OPINION AND ORDER
Pending before the court is defendant Pilgrim Senior Citizens Housing Development
Corporation’s (“Pilgrim”) motion to vacate default judgment, in which Pilgrim contests the
sufficiency of the service of process effected upon it. Dkt. 9. For the reasons explained below, the
court concludes that plaintiff Vanessa Douglas (“Douglas”) has not served Pilgrim with process
consistent with Federal Rule of Civil Procedure 4(h)(1)(B), and Pilgrim’s motion to vacate default
judgment is GRANTED.
I. BACKGROUND
On October 12, 2011, Douglas filed her complaint for unpaid overtime wage compensation
under the Fair Labor Standards Act (“FLSA”). Dkt. 1. Douglas alleges that from June 2008 through
October 2010, she worked as a security guard, and Pilgrim failed to pay her overtime compensation
during that period. Id.
Debra Washington, a Pilgrim employee, was allegedly served with process on November 29,
2011. Dkt. 11-2, Ex. A. Although the summons required Pilgrim to answer the complaint or file
a motion under Rule 12 of the Federal Rules of Civil Procedure within 21 days of service, Dkt. 4,
Pilgrim did not answer or otherwise make an appearance. Douglas therefore moved for entry of
default judgment on April 24, 2012, seeking unpaid overtime wages, liquidated damages, and
attorneys’ fees and costs totaling $17,724.00. Dkt. 6. On June 6, 2012, the court granted the motion
and entered final judgment against Pilgrim. Dkt. 7.
On June 19, 2012, Pilgrim filed a motion to vacate the default judgment. Dkt. 9. Pilgrim
asserts that it was never served and did not receive notice of the case until May 31, 2012. Id. Debra
Washington submitted an affidavit asserting that she has “never been served in ... [this] cause of
action as alleged in the proof of service signed by William Cooke,” nor was she authorized by
Pilgrim to accept service of process on its behalf. Dkt. 9-1, Ex. A.
William Cooke, the process server hired by Douglas to perfect service upon Pilgrim,
submitted an affidavit asserting that he “personally served a woman who introduced herself as Debra
Washington” at Pilgrim’s place of business and Washington told him “that the registered agent rarely
comes in but she was authorized to accept [on] his behalf.” Dkt. 11-2. In support of his affidavit,
Cooke attaches a photograph he took while serving a woman who introduced herself as Debra
Washington and a business card allegedly given to him by Washington. Dkt. 11-2, Ex. A.
II. ANALYSIS
1. Applicable Law
Absent proper service of process, the court lacks personal jurisdiction over the defendant, and
any default judgment against the defendant is void. See Rogers v. Hartford Life & Accident Ins. Co.,
167 F.3d 933, 940 (5th Cir. 1999). Service of process may be completed by delivering a copy of the
summons and the complaint to “an officer, managing or general agent, or other agent authorized by
appointment or by law to receive service of process.” FED . R. CIV . P. 4(h)(1)(B).
2
A party vested with general powers involving the exercise of independent judgment and
discretion is such an agent. Jim Fox Enters., Inc. v. Air France, 664 F.2d 63, 64 (5th Cir. 1981).
The person served should be “responsible for any substantial aspect of the corporation’s operations,
i.e. [is] a managing or general agent.” Fyfee v. Bumbo Ltd., 2009 WL 2996885, at *3 (S.D. Tex.
Sept. 16, 2009). The Fifth Circuit takes an even more restrictive view of these rules, holding that
the corporate entity sought to be served must have actually authorized the agent to accept service of
process on its behalf. Lisson v. ING Groep, 262 F. App’x 567, 569 (5th Cir. 2007) (per curiam). In
other words, “delivery to a purported agent does not constitute service on the would-be principal,
even if the ‘agent’ represents [herself] to be so authorized or accepts service.” Lisson, 262 F. App’x
at 570 (quoting O’Meara v. New Orleans Legal Assistance Corp., 1991 WL 110401 at *2 (E.D. La.
June 10, 1991)).
2. Application of Law to Facts
“When service of process is challenged, the serving party bears the burden of proving its
validity.” Sys. Signs Supplies v. United States Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990).
Plaintiff fails to meet this burden.
Plaintiff merely argues, citing Cooke’s affidavit, that
“Washington presented herself as an agent authorized to accept service on behalf of the defendant.”
Dkt. 11. However, as stated above, absent proof of actual authority, “delivery to a purported agent
does not constitute service on the would-be principal.” Lisson, 262 F. App’x at 570. Douglas offers
no evidence that Ms. Washington actually is as an officer, managing agent, general agent, or any
other agent authorized by appointment or by law to receive service of process, and Washington has
denied under oath that she is authorized to accept service. Dkt. 9-1, Ex. A. Plaintiff has not shown
that defendant was validly served with process under Rule 4(h).
3
III. CONCLUSION
Pilgrim’s motion to vacate default judgment (Dkt. 9) is GRANTED. The clerk is instructed
to enter defendant’s proposed answer, attached to its motion to vacate, as a separate docket entry as
of the date of this order.
It is so ORDERED.
Signed at Houston, Texas on August 9, 2012.
_____________________________________
Gray H. Miller
United States District Judge
4
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?