Scott v. Wise County Department of Social Services et al
OPINION and ORDER granting in part 35 Motion for Protective Order, in that all discovery in the case by the parties is STAYED pending the resolution of the pending Motion to Dismiss; denying 36 Motion to Dismiss ; taking under advisement 39 Motion for Extension of Time to File Document; denying 41 Motion to Compel; denying 43 Motion to Dismiss ; denying 43 Motion to Quash; denying 45 Motion for Extension of Time to File Response/Reply; denying 53 Motion for Order to Show Cause; granting 25 Motion to Alter Judgment and the default entered against the defendant 20 is VACATED; taking under advisement 26 Motion to Dismiss ; denying 29 Motion to Strike. Signed by Judge James P. Jones on 02/16/2021. (Order mailed to Pro Se Party via US Mail)(ar)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
WISE COUNTY DEPTMENT OF
SOCIAL SERVICES, ET AL.,
Case No. 2:20CV00014
OPINION AND ORDER
By: James P. Jones
United States District Judge
Melinda Scott, Pro Se Plaintiff; Matthew D. Hardin, Washington, D.C., for
Defendant Joshua Moon.
Defendant Joshua Moon has moved to set aside entry of a default pursuant to
Rule 55(c). The motion has been fully briefed and for the reasons set forth it will be
granted. I will also dispose of other motions filed by the parties.
The plaintiff brought this diversity action against Joshua Moon and others.
She contends that Moon owns a website on which other defendants have posted
“personal information about the plaintiff . . . for the purpose of causing social harm
and emotional distress to the Plaintiff.” Compl. ¶ 65, ECF No. 2. The plaintiff was
allowed to procced in forma pauperis by the magistrate judge and supplied the U.S.
Marshals Service with an address to serve Moon with the Summons and Complaint.
That address turned out to be the business address of a company called “Kwik Pack
& Ship,” located in Fort Walton Beach, Florida, offering an “electronic mailbox”
service by which it will accept documents for clients who in turn have the option to
pay a fee to have the documents sent electronically to them. Proof of Service, ECF
No. 5. A Deputy U.S. Marshall delivered the Summons to an employee of this
company on August 21, 2020. Id. On November 16, 2020, Moon having not
appeared, answered, or otherwise defended, the Clerk entered a default of record
pursuant to Federal Rule of Civil Procedure 55(a), sending a copy thereof to Moon’s
address. Clerk’s Entry of Default, ECF No. 20.
On December 7, 2020, Moon, by counsel, filed a Motion to Set Aside Default
Judgment, alleging that he had not received the Summons delivered on August 18,
and requesting that the default be set aside, pursuant to Federal Rule of Civil
Procedure 55(c).1 Mot. Set Aside, ECF No. 25. He contemporaneously filed a
Motion to Dismiss the Complaint. Mot. to Dismiss, ECF No. 26.
If a party does not plead or otherwise defend as provided by the rules, the
clerk is required to enter a default. Fed. R. Civ. P. 55(a). The court may set aside
entry of default upon a showing of good cause. Id. at 55(c). This standard is to be
liberally construed because of the institutional preference that controversies be
Defendant’s motion refers to a default judgment, but no judgment has been
entered, simply a default, although the defendant correctly cites Rule 55(c) as the proper
decided on their merits. See Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 954 (4th
Cir. 1987). Among the factors to be considered in deciding whether good cause has
been shown by the defaulted party are (1) whether the party has a meritorious
defense; (2) the personal responsibility of the party for the default; and (3) any
prejudice to the opposing parties. Id. at 953. Other factors include whether the party
acted with reasonable diligence to set aside the default, whether there is a history of
dilatoriness in the case, and the availability of other sanctions. Id. “Any doubts
about whether relief should be granted should be resolved in favor of setting aside
the default so that the case may be heard on the merits.” Tolson v. Hodge, 411 F.2d
123, 130 (4th Cir. 1969).
I find that these factors weight in favor of granting the defendant’s motion. In
the first place, as contended, there is an argument that service of process on the
defendant was defective. Mot. to Dismiss ¶ 5, ECF No. 26; See Reading v. United
States, 506 F. Supp. 2d 13, 17 (D.D.C. 2007) (“[G]ood cause exists for vacatur when
the defendant pleads a failure to effect service by the plaintiffs.).
Under the federal rules there are three available procedures to follow in
affecting proper serve of the initial suit papers on an individual defendant, such as
Moon. The plaintiff may follow the federal rules, see Fed. R. Civ. P. 4(e)(2); the
rules of the state in which the court sits, see Va. Code Ann. § 8.01-296, or the rules
of the state where service is made, see Fla. Stat. Ann. § 48.031. Neither the federal
rules nor the Virginia rules permit service by way of a mailbox service. Florida does
have a statutory provision that permits such service under certain limited conditions.
One of those conditions is that the private mailbox must be the only address
discoverable for the defendant. Id. at § 48.031(6)(a); 41A Lisa A. Zakolski, Florida
Juris. § 23 (2d ed. Dec. 2020 update), Westlaw FLJUR PROCESS §23. The plaintiff
has admitted in a subsequent pleading her understanding that Moon’s residence is
with his mother in Pensacola, Florida. Pl.’s Resp. 8, ECF No. 47. If true, service
could have been made there for Moon on any person also residing in that home who
is at least 15 years old. Fla. Stat. Ann. § 48.031(1)(a).
It is also contended that there is a lack of proper venue, that the court lacks
personal jurisdiction over Moon, that the Complaint fails to state a claim upon which
relief can be granted, and that the action is barred by res adjudicata or collateral
estoppel. Mot. to Dismiss ¶¶ 2, 3, 5(f), 6, 7, ECF No. 26. Moreover, there is no
evidence that the private mailbox service performed its duty or that Moon actually
received the Summons and Complaint. There is no evidence that the plaintiff has
been subject to legal prejudice or that any of the other factors point to fault on
For these reasons, the defendant’s motion will be granted. Other pending
motions will be resolved in this Opinion and Order. The defendant’s Motion to
Dismiss will be resolved in a future Opinion.
Accordingly, it is ORDERED as follows:
1. The Motion to Set Aside Default, ECF No. 25, is GRANTED and the
default entered against the defendant, ECF No. 20, is VACATED;
2. The Motion to Strike by Plaintiff, ECF No. 29, is DENIED;
3. The Motion to Dismiss Defendant’s Motion to Extend Deadline, ECF No.
36, is DENIED;
4. The Second Motion to Compel Production from Defendant Joshua Moon,
ECF No. 41, is DENIED;
5. The Motion for Extension of Time to Serve Summons on Jane Doe 1 and
John Does 1-3, ECF No. 39, is TAKEN UNDER ADVISEMENT;
6. The Motion to Quash and Dismiss Defendant’s Request to Vacate Previous
Orders and for Issuance of a Protective Order/Stay/Other Relief, ECF No.
43, is DENIED.
7. Defendant Joshua Moon’s Second Motion to Extend Deadline Pursuant to
Local Civ. R. 11(c)(2), ECF No. 45 is DENIED as moot as to the motions
docketed as ECF Nos. 38, 41, and 43 and TAKEN UNDER
ADVISEMENT as to the motion docketed as ECF No. 39;
8. The Motion to Dismiss by Defendant Moon, ECF No. 26, is TAKEN
UNDER ADVISEMENT. Plaintiff is allowed another opportunity to
respond to the Motion to Dismiss, provided it is filed within 14 days of the
date of this Order. No “motions to strike” or other like motions will
interrupt the running of the deadline for a response;
9. Defendant’s Motion for Partial Stay, Protective Order, and Other Relief,
ECF No. 35, is GRANTED IN PART, in that all discovery in the case by
the parties is STAYED pending the resolution of the pending Motion to
10. Joshua Moon’s Motion for an Order to Show Cause, ECF No. 53, is
The Clerk shall provide a copy of this Opinion and Order to the plaintiff.
ENTER: February 16, 2021
/s/ JAMES P. JONES
United States District Judge
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?