Shaw v. 500516 N.B. Ltd.
| Decision Date | 23 October 2009 |
| Docket Number | No. CV-09-264-B-W.,CV-09-264-B-W. |
| Citation | 668 F.Supp.2d 237 |
| Parties | Max SHAW, et al., Plaintiffs, v. 500516 N.B. LTD., et al., Defendants. |
| Court | U.S. District Court — District of Maine |
v.
500516 N.B. LTD., et al., Defendants.
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COPYRIGHT MATERIAL OMITTED
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Peter Clifford, Hodsdon & Clifford, LLC, Kennebunk, ME, for Plaintiff.
Christopher P. Flanagan, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Boston, MA, for Defendants.
JOHN A. WOODCOCK, JR., Chief Judge.
On August 27, 2009, the United States Magistrate Judge filed with the Court her Recommended Decision. Report and Recommended Decision (Docket # 29) (Recommended Decision). Max Shaw filed objections to the Recommended Decision on September 11, 2009. Objection to Report
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and Recommended Decision (Docket # 30) (Pl.'s Objection to Recommended Decision). 500516 N.B. Ltd. (N.B.) and Adam Tompkins filed their response on September 28, 2009. Response to Objection to Report and Recommended Decision (Docket # 31) (Defs.' Response to Objection). The Court has reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record, and has made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision. Because the Court did not have personal jurisdiction over Mr. Tompkins before default entry and there is good cause under Federal Rules of Civil Procedure Rule 55(c) to remove the default entered against N.B., the Court affirms the Magistrate Judge's Recommended Decision over the objections of the Plaintiff.1
I. STATEMENT OF FACTS
A. Shaw v. Stewart's Transfer: Docket Number 09-148
The genesis of this case can be traced to March 6, 2009, when Max Shaw filed a complaint in Penobscot County Superior Court against Stewart's Transfer and Adam Tompkins, arising out of a tragic accident that took place on I-95 in Howland, Maine in which Sandra Shaw, the Plaintiff's daughter, lost her life. Notice of Removal at Ex. 3, Civil No. 09-148-B-W (Docket # 1) (Notice of Removal).2 The Complaint alleged that a Freightliner truck owned by Stewart's Transfer and operated by Mr. Tompkins struck a moose, and that Mr. Tompkins negligently left the moose in the roadway, and failed to put up warning signals, illuminate the moose, or take other steps to warn other drivers of the hazard. Id. at ¶ 7, 8. 9, 10.
Sandra Shaw was riding as a passenger southbound on I-95 in a motor vehicle operated by Kirk Sirois. Id. at ¶ 6. Mr. Sirois failed to notice the moose, stuck it, and then struck the rear of Mr. Shaw's truck, causing Ms. Shaw's death. Id. at ¶ 11, 12. On behalf of his daughter and her estate, Mr. Shaw asserted claims of wrongful death, conscious pain and suffering, and a survival action against both Defendants. Id. at ¶¶ 17-26. On April 16, 2009, the Defendants removed the case to this Court. Notice of Removal.
Upon removal, both the Plaintiff and the Defendants raised jurisdictional issues. The Plaintiff moved to have the case remanded to state court and the Defendants moved to dismiss the case on jurisdictional grounds and for failure to state a claim. Pl.'s Mot. for Remand, Civil No. 09-148-B-W (Docket # 8); Defs, Stewarts's Transfer's and Adam Tompkins' Mot. to Dismiss Pl.'s Comp., Civil No. 09-148-B-W (Docket # 9). On May 28, 2009, the Plaintiff withdrew the motion for remand. Withdrawal of Mot. to Remand to State Court, Civil No. 09-148-B-W (Docket # 14). On June 22, 2009, the Magistrate Judge gave notice that she had scheduled a hearing on the motion to dismiss for July 22, 2009, and that the issues would include argument and any evidence the parties wished to present on whether service of process complied with the Hague Convention. Notice of Hearing, Civil No. 09-148-B-W (Docket # 24). On June 17, 2009,
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the Plaintiff filed an emergency motion to extend time for 120 days within which to complete service of process. On June 19, 2009, the Magistrate Judge reserved ruling on the emergency motion, and the same day, the Plaintiff filed a voluntary dismissal of the lawsuit. Notice of Voluntary Dismissal, Civil No. 09-148-B-W (Docket # 30).
B. Shaw v. 500516 N.B., LTD and Adam Tompkins: 09-264-B-W
On the very same day, Mr. Shaw dismissed one case against Stewart Transfer and Mr. Tompkins, he initiated a new one. Compl. (Docket # 1). This time he named as defendants 500516 N.B. LTD, doing business as Stewart's Transfer, as well as Mr. Tompkins. No one appeared on behalf of either defendant, and on July 16, 2009, Mr. Shaw moved for entry of default, which was duly entered the same day.3 Mot. for Default and Default J. Against Defs. (Docket # 7) (Mot. for Default); Order Granting Mot. for Entry of Default (Docket # 9). Mr. Shaw's motion for default judgment was ripe for resolution.
Nevertheless, on July 21, 2009, the Court deferred issuing a default judgment and sua sponte questioned the adequacy of service of process on the two defendants. Order on Mot. for Default J., 2009 WL 2184953 (Docket # 10) (Order on Mot.). The Order required Mr. Shaw to respond within ten days. Id. at 5. Meanwhile on July 24, 2009, Defendants filed an appearance by moving to dismiss for lack of personal jurisdiction and failure to state a claim. Defs.' Stewart's Transfer's and Adam Tompkins' Mot. to Dismiss (Docket # 11) (Defs.' Mot. to Dismiss). Further, on August 3, 2009, Defendants opposed the Plaintiff's motion for default judgment on jurisdictional grounds, not on grounds of notice. Defs.' Stewart's Transfer's and Adam Tompkins' Opp'n to Pl.'s Mot. for Default J. (Docket # 16) (Defs.' Opp'n). On July 31, 2009 Mr. Shaw provided affidavits with additional information about the service of process on the two Defendants. Aff. of Peter Clifford (Docket # 15) (Aff. of Clifford).
C. The Recommended Decision
On August 27, 2009, the Magistrate Judge recommended that the Court deny Mr. Shaw's motion for default judgment and set aside the entry of default as to both Defendants. Recommended Decision at 254. The Magistrate Judge concluded that Mr. Tompkins "obviously had good cause to contend that service upon Attorney Lunn, a process agent for his employer, was not sufficient service upon him, personally." Id. at 252. Similarly, she concluded that "N.B. appears to have raised its Hague Convention service defense in good faith." Id. She found that the Defendants' failure to respond did not reflect "disrespect for the court." Id. (quoting Snyder v. Talbot, 836 F.Supp. 26, 29 (D.Me.1993)). In the absence of prejudice to Mr. Shaw, she recommended the Court exercise its discretion in favor of trial on the merits and set aside the entry of default. Id.
II. PLAINTIFF'S OBJECTIONS
Mr. Shaw lists eight objections to the Magistrate Judge's Recommended Decision, which can be grouped into two general categories: (1) that the Court had personal jurisdiction over both defendants so that the default entry was valid (Objections # 2-5); and, (2) that proper analysis
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of "good cause" under Rule 55(c) leads to the conclusion that default entry should not be overturned (Objections # 1, 5-8). Pl.'s Objection to Recommended Decision at 2-3.
A. Validity of Default Entry
Mr. Shaw argues that service on Attorney Lunn on June 25, 2009 and service on PASC on June 28, 2009 were valid under Rule 4(e)(2)(C) in regards to Mr. Tompkins. Specifically, Mr. Shaw contends that because Mr. Tompkins did not contest this issue by affidavit, "presumably, Attorney Lunn was authorized to accept service for employees of 500516 N.B., Ltd." Id. at 2.
The presumption, however, cuts the other way. The general rule is that Attorney Lunn's authorization to accept service for N.B. does not authorize him to accept service for N.B.'s employees. Order on Mot. at 3-4 (citing 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1097, at 536-39 (3d ed. 2002)) ("The cases dealing with agency by appointment indicate that an actual appointment for the specific purpose of receiving process normally is expected."). In its July 21, 2009 Order, the Court gave Mr. Shaw 10 days to submit additional evidence to prove that Attorney Lunn was authorized to accept service of process on behalf of Mr. Tompkins. Neither Mr. Shaw's response of July 31, 2009 nor his Objection to the Magistrate Judge's Recommended Decision provides any additional information on this issue.4 Mr. Tompkins has now affirmatively denied authorizing Attorney Lunn to accept service on his behalf. Defs.' Response to Objection at 9. Absent such a showing, the general rule applies and service to Mr. Tompkins was ineffective under Rule 4(e)(2)(C).
Mr. Shaw provides no reason the Court should treat service on PASC differently. The basis for jurisdiction—that N.B., Mr. Tompkins's employer, designated PASC the agent for service of process for the company—is the same. In fact, Mr. Shaw admits that PASC "rejected Plaintiff's efforts to serve Adam Tompkins, and sent the Tompkins paperwork back." Aff. of Clifford at 3. Mr. Shaw has established no factual basis for his bare assertion that Mr. Tompkins authorized PASC to accept service of process on his behalf.
Because service on Attorney Lunn and PASC did not give the Court personal jurisdiction over Mr. Tompkins, the default entered on July 16, 2009 was invalid as to Mr. Tompkins. See, e.g., Sys. Pipe & Supply, Inc. v. M/V Viktor Kurnatovskiy, 242 F.3d 322, 324 (5th Cir.2001) (holding that a judgment, including a default judgment, is void if entered without personal jurisdiction); Hugel v. McNell, 886 F.2d 1, 3 n. 3 (1st Cir.1989) (mentioning that lack of appearance did not waive ability to contest personal jurisdiction); Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir.2002) ("To hear a case, a court must have personal jurisdiction over the parties, `that is, the power to require the parties to obey its decrees.'" (quoting United States v. Swiss Am....
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