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Lewis v. Hoke County

United States District Court, M.D. North Carolina

October 2, 2019

ROBERT LEWIS, Plaintiff,
v.
HOKE COUNTY, et al., Defendants.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          JOE L. WEBSTER, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court upon Motions to Set Aside Entry of Default by Defendants ABL Food Service and Kevin (ABL Food Service Manager) (hereinafter “Kevin”). (Docket Entries 36, 41.) Also before the Court is Plaintiff Robert Lewis's Motion for Default Judgment. (Docket Entry 32.) These matters are ripe for disposition. For the following reasons, it is recommended that the Court grant Defendants' motions to set aside entry of default and deny Plaintiff's motion for default judgment.

         I. BACKGROUND

         Plaintiff, pro se, filed this action in October 2017 alleging a violation under 42 U.S.C. § 1983 of Plaintiff's constitutional rights at the Hoke County Detention Center between October 19, 2014 and February 8, 2017. (See generally Complaint, Docket Entry 2.) Plaintiff filed an Amended Complaint on June 6, 2018. (Docket Entry 10.) Plaintiff's claims essentially allege a denial of medical care, inadequate food services and unsafe food conditions. (Docket Entries 2, 10.) Summonses were issued as to all Defendants on August 31, 2018. (Docket Entry 13.)

         Copies of the Complaint and summons were returned executed as to Defendants ABL Food Service and Kevin on September 28, 2018. (Docket Entry 20.) The Returns reflect that Defendants ABL Food Service and Kevin were served via certified mail, and sent to the address Plaintiff provided for service at “Hoke County Detention Center, P.O. Box 300, Raeford, NC 28376.” (Docket Entries 13, 20.) An individual named “Lt. Smith” signed the Return purportedly on behalf of Defendants ABL Food Service and Kevin. (Docket Entry 20 at 4, 8.)

         After Defendants ABL Food Service and Kevin failed to file an Answer, Plaintiff filed a Motion for Default Judgment (Docket Entry 25) which the Court construed as a Motion for Entry of Default and granted the motion on May 22, 2019. (Docket Entry 29.) Plaintiff then filed a Motion for Default Judgment against Defendants ABL Food Service and Kevin on June 5, 2019. (Docket Entry 32.) Shortly thereafter, both Defendants moved to set aside entry of default. (Docket Entries 36, 41.)

         In support of Defendant ABL Food Service's motion, corporate counsel for Elior, Inc. (“Elior”), Angela Anderson, submitted a declaration. (Anderson Declaration, Docket Entry 37-1.) She indicates that Elior's subsidiary, Summit Food Services, LLC (“Summit”), is the legal entity that presently provides food services to the Hoke County Detention Center. (Id. ¶ 4.)

         Ms. Anderson first became aware of the litigation on June 3, 2019 after a current Food Service Director for Summit emailed a copy of the partial entry of default to a general legal email address for Elior, on Friday, May 31, 2019. (Id. ¶¶ 15-16.) She further indicates that “ABL Food Service” is not associated with Elior, but that ABL Management, Inc. (“ABL Management”) is subsidiary of Elior and it previously provided food services for Hoke County Detention Center. (Id. ¶¶ 5-6, 9, 10.) Additionally, all of ABL Management's prison accounts have been transferred to Summit. (Id. ¶ 8.)

         Upon receiving the partial entry of default, Ms. Anderson promptly inquired as to whether any other officers or employees of Summit or its parent company had knowledge of the litigation; to her knowledge, no other officers or employees were aware of the litigation prior to June 3, 2019. (Id. ¶ 18.) She further asserts that “Lt. Smith, ” the individual who signed the receipt of service at the Hoke County Detention Center, is not a registered agent for Summit or ABL Management, nor has he been authorized to accept service on their behalf. (Id. ¶¶ 5, 23.) Ms. Anderson is not aware of any individual employed by the Hoke County Detention Center that is authorized to accept service on behalf of ABL Management or Summit. (Id. ¶ 20.) Also, she is unaware of any contractual agreement by ABL Management or Summit authorizing any individual at the Hoke County Detention Center to accept service on their behalf. (Id. ¶ 21.)

         As to Defendant Kevin, the declaration in support of his motion indicates that an individual named Kevin Edge was employed as a Food Service Director at the Hoke County Detention Center by ABL Management from March 1, 2016 through October 14, 2017. (Edge Decl. ¶ 2, Docket Entry 42-1.) Mr. Edge first became aware of the above-captioned lawsuit filed by Plaintiff on Saturday, June 22, 2019, when he received a letter from an attorney requesting that Mr. Edge call him as soon as possible. (Id. ¶ 4.) Prior to receipt of this letter, Mr. Edge had no knowledge that Plaintiff filed a lawsuit against him or anyone else. (Id. ¶ 5.) A few days later, Mr. Edge contacted counsel and was then emailed copies of the summons and Complaint in the instant action. (Id. ¶¶ 6-7.) Mr. Edge states that the Complaint was never delivered to his residence, nor has he authorized “Lt. Smith, ” or any individual employed by the Hoke County Detention Center to accept service on his behalf. (Id. ¶¶ 10-13.)

         II. DISCUSSION

         A. Defendants' Motions to Set Aside Entry of Default

         Pursuant to the Federal Rules of Civil Procedure, “[t]he Court may set aside an entry of default for good cause[.]” Fed.R.Civ.P. 55(c). The Fourth Circuit has held that certain factors must be considered to determine if there is “good cause” to set aside an entry of default: (1) whether the moving party has a meritorious defense, (2) whether it acts with reasonable promptness, (3) the personal responsibility of the defaulting party, (4) the prejudice to the party, (5) whether there is a history of dilatory action, and (6) the availability of sanctions less drastic. Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 204-05 (4th Cir. 2006). “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) (citation omitted). Resolution of motions made under Rules 55(c) “is a matter which lies largely within the discretion of the trial judge[.]” Consol. Masonry & Fireproofing, Inc. v. Wagman Const. Corp., 383 F.2d 249, 251 (4th Cir. 1967).

         Considering the factors in Payne, the Court concludes that Defendants' motions should be granted. The Court first considers whether Defendants have raised a meritorious defense. Payne, 439 F.3d at 205. Both moving Defendants contend that because Plaintiff failed to properly serve Defendants, the Court does not have personal jurisdiction over them. “Absent waiver or consent, a failure to obtain proper service on the defendant deprives the court of personal jurisdiction over the defendant.” Koehler v. Dodwell,152 F.3d 304, 306 (4th Cir. 1998); Reynolds Innovations, 851 F.Supp.2d at 962; U.S. ex rel. Metromont Corp. v. S.J. Constr., Inc., No. 1:09CV745, 2010 WL 2793919, at *5 (M.D. N.C. July 15, 2010) (“If service of process is not valid, a district court lacks jurisdiction over a defendant.”). The Federal Rules of Civil Procedure require that any summons be “directed to the defendant, ” Fed.R.Civ.P. 4(a)(1)(B), and service may be effected under state law (Rule 4(e)(1)) or by delivering the summons “to the person individually, ” leaving a copy at the person's home, or delivering a copy to “an authorized agent.” Fed.R.Civ.P. 4(e)(2). Service of process on an individual under state law in North Carolina is governed by ...


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