United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on Plaintiff's Motion for
Default Judgment. (Doc. No. 11). For the reasons stated
below, Plaintiff's Motion is DENIED and the Court sua
sponte sets aside the entry of default against
se Plaintiff filed this lawsuit in June 2017, alleging
that Defendant engaged in unlawful race discrimination and
retaliation. (Doc. No. 1, p. 3). Since Plaintiff is
proceeding in forma pauperis, service of this case
was done by the U.S. Marshal Service based on information
included in Plaintiff's summons. (Doc. No. 5). The Court
received a return receipt of service on July 18, 2017. (Doc.
No. 5-1). Seeing the return receipt of service, and noting no
response by Defendant or further action by Plaintiff, the
Court issued a show cause order to Plaintiff on August 13,
2018 for failure to prosecute. (Doc. No. 6). Plaintiff moved
for an entry of default on August 31, 2018 and default was
entered against Defendant on that day. (Doc. Nos. 9, 10).
Plaintiff subsequently moved for default judgment on January
28, 2019. (Doc. No. 11).
of the Federal Rules of Civil Procedure allows for a default
judgment against a party who has “failed to plead or
otherwise defend” itself in an action against it.
Fed.R.Civ.P. 55. Nonetheless, before entering a default
judgment against a defendant, a court must assure itself that
defendant has been properly served. See Armco, Inc. v.
Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089
(4th Cir. 1984) (vacating a default judgment where service of
process was insufficient). A court does not have personal
jurisdiction over a defendant who has not been properly
served and therefore has no power to enter a default
judgment. See Central Operating Co. v. Util. Workers of
America, AFL-CIO, 491 F.2d 245, 249 (4th Cir. 1974)
(“It is axiomatic that a federal court cannot acquire
in personam jurisdiction over a defendant who does not
voluntarily appear unless he is served with process in a
manner authorized by federal statute or rule.”);
see also Goldbelt Wolf v. Operational Wear Armor,
LLC, No. 1:15-cv-1269, 2016 WL 726532, at *2 (E.D. Va.
Feb. 22, 2016). Thus, when presented with a motion for
default judgment, a court may either grant the motion or set
aside the underlying entry of default if it finds that
service of process was insufficient. See Lostutter v.
Cook, No. 1:17-cv-801, 2018 WL 6002472, at *3 (M.D. N.C.
Nov. 15, 2018).
Court finds that service of process was not proper in this
case; therefore, the Court must deny Plaintiff's motion
for default judgment and set aside the entry of default
in this case is a business entity. Under the Federal Rules of
Civil Procedure, service of process cannot be addressed to
the business entity as a whole, but must be delivered
“to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive
service of process.” Fed.R.Civ.P. 4(h) (emphasis
added). In addition to the above method of service, the
Federal Rules also allow for service of a corporation based
on North Carolina State Law. See Fed.R.Civ.P.
4(h)(1)(A) (referencing Rule 4(e)(1) as an appropriate method
of service). North Carolina law similarly states that if a
business entity is served by certified mail, such mail must
be addressed to a specific officer, manager, partner, or
registered agent within the organization. See N.C.
R. Civ. P. 4(j)(6)-(8) (describing service requirements for
corporations, partnerships, and other unincorporated
Plaintiff's summons does not identify any specific
individual to be served with process. Plaintiff's summons
designated the defendant to be served as:
9200 Glenwater Dr. Charlotte NC 28262 University Place
Nursing and Rehabilitation Center
(Doc. No. 4, p. 1). The U.S. Marshal Service then mailed a
copy of the summons by certified mail to University Place
Nursing and Rehabilitation Center, and subsequently filed a
return receipt that was signed by “Karen Barton.”
(Doc. No. 5-1, p. 1). There is no indication in the record
who Karen Barton is, what her role is within the
organization, or if she was a registered agent capable of
accepting service on behalf of Defendant. Thus, because the
summons in this case was improperly addressed, and there has
been no showing of actual notice to Defendant of this
lawsuit, the Court concludes that service of process in this
case was insufficient. See Tann v. Fisher, 276
F.R.D. 190, 192 (D. Md. 2011) (holding that service of
process to someone who has not been shown to be an agent of a
defendant entity was not sufficient service of process). The
Court therefore lacks personal jurisdiction over Defendant
and cannot render a default judgment. See Central
Operating Co., 491 F.2d at 249.
reasons stated above, Plaintiffs Motion for Default Judgment,
(Doc. No. 11), is DENIED and the Clerk of Court is
respectfully DIRECTED to set aside the entry of default,
(Doc. No. 10), against Defendant. Pursuant to Rule 4(a)(2) of
the Federal Rules of Civil Procedure, the Court hereby GRANTS
Plaintiff leave to amend the summons in her case.
Furthermore, the Court also grants Plaintiff an extension of
time to serve her complaint. Plaintiff will have ninety (90)
days from the date of this order's entry ...