Tabbert, Hahn, Earnest, Weddle, P.C. v. Lanza

• Decision Date: 31 March 2000
• Docket Number: No. IP 99-0466-C-T/G.,IP 99-0466-C-T/G.
• Citation: 94 F.Supp.2d 1010
• Parties: TABBERT, HAHN, EARNEST AND WEDDLE, P.C., Plaintiff, v. Joseph LANZA and Jayne Lanza, Defendants.
• Court: U.S. District Court — Southern District of Indiana

94 F.Supp.2d 1010

TABBERT, HAHN, EARNEST AND WEDDLE, P.C., Plaintiff, v. Joseph LANZA and Jayne Lanza, Defendants.

No. IP 99-0466-C-T/G.

United States District Court, S.D. Indiana, Indianapolis Division.

March 31, 2000.

Gregory F Hahn, Tabbert Hahn & Earnest, Indianapolis, IN, for plaintiff.

Gustin J Raikos, Indianapolis, IN, for defendants.

ENTRY DISCUSSING PENDING MOTIONS

TINDER, District Judge.

This matter comes before the court on four motions: (1) Motion for Remand and Objection to Removal of Civil Action ("Motion for Remand"); (2) Defendants' Motion to Dismiss ("Motion to Dismiss"); (3) Motion to Quash Deficient Service of Process, and to Strike Judgment Entered after Removal of Action Based upon Such Service ("Motion to Quash Service, and to Strike Judgment"); and, (4) Motion to Vacate Void State Court Judgment Entered of Record Subsequent to Removal of Action ("Motion to Vacate Judgment"). The Motion for Remand was filed by Plaintiff Tabbert, Hahn, Earnest and Weddle, P.C. ("Tabbert"), and the other three motions were filed by Defendants, Joseph Lanza ("Mr.Lanza") and Jayne Lanza ("Ms.Lanza"). After considering the motions and the submissions of the parties, the court finds as follows.¹

I. Facts

On December 1, 1998, Tabbert filed the Complaint in this case in the Superior Court of Marion County, Indiana, Cause Number 49 D03 9812 CP 001700. Tabbert, a law firm based in Indianapolis, alleges that it was retained by Mr. Lanza and Ms. Lanza (collectively, "the Lanzas") to represent them in a criminal tax evasion case in the United States District Court for the Northern District of Indiana, United States v. Joseph Lanza and Jayne Lanza, Cause Number 2:96CR-001-JM. Tabbert further alleges that the Lanzas owe Tabbert $186,565.28 for services rendered and costs advanced by Tabbert.

Tabbert served, via certified mail, copies of the Summons on the Lanzas at their California residence. (Mot. for Remand, Ex. 1.) The certified mail receipts indicate that the copies of the Summons sent by Tabbert were received by the Lanzas on December 4, 1998. (Id.)

On December 5, 1998, Mr. Lanza sent a letter to the Marion Superior Court stating: "On December 4, 1998, I received the enclosed summons. However, I did not receive a copy of a complaint, making it impossible for myself or my bride to answer." (Mot. for Remand, Ex. 2.)

On December 2, 1998, the Clerk of the Marion Superior Court (by a Deputy Clerk) signed a "Certificate of Mailing" certifying that the Summonses and copies of the Complaint were sent, via certified mail, to the Lanzas at their California residence. (Mot. for Remand, Ex. 3.) The certified mail receipts indicate that the Summonses and copies of the Complaint sent by the Clerk were delivered on December 7, 1998. On December 10, 1998, a Deputy Clerk of the Marion Superior Court signed a "Return on Service by Mail" for each Defendant, certifying that "the attached return receipt was received by me showing that the Summons and a copy of the complaint mailed to defendant was accepted by the defendant on December 10, 1998."

According to an Affidavit from Ms. Lanza, she received Summonses on both December 4, 1998 and December 7, 1998. (Aff. of Jayne Lanza ¶¶ 2, 6.) However, Ms. Lanza denies that there was a copy of the Complaint attached to the Summons that she received from the Clerk on December 7, 1998. (Id. ¶ 6.)

On December 29, 1998, the Lanzas filed a motion for enlargement of time to answer the Complaint. On January 6, 1999, an order enlarging the time to answer to January 28, 1999 was entered. (Mot. for Remand, Ex. 5.)

On January 29, 1999, the Lanzas again moved for an enlargement of time to answer the Complaint. On February 1, 1999, the time to answer was enlarged to February 28, 1999. (Id.)

On March 2, 1999, the Lanzas again moved for an enlargement of time. On March 3, 1999, the time to answer was enlarged to March 31, 1999. (Id.)

On April 1, 1999, a motion for default judgment was filed by Tabbert. On April 5, 1999, the Marion Superior Court granted Tabbert default judgment in the amount of $186,565.28 plus interest. (Id.)

Also on April 5, 1999, after the Marion Superior Court Clerk's office had closed, the Lanza's faxed a motion for enlargement of time to the Clerk. (Aff. of Jayne Lanza ¶ 16.)

On April 6, 1999, the Lanza's attorney (who had been retained on April 5, 1999) filed a Notice of Removal in this court, alleging diversity jurisdiction. (Id. ¶¶ 17-18.)

II. Discussion

Tabbert moves for remand on the grounds that the removal was untimely under 28 U.S.C. § 1446(b), which provides:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

The issue in this case is whether the Lanzas received proper service in early December 1998. If they did, then the thirty-day removal clock began to run at that time and the Lanzas' Notice of Removal, filed on April 6, 1999, would be untimely pursuant to Section 1446(b). However, if the attempts at service in December 1998 were ineffective, then the removal clock would still not have begun (because there have been no other attempts at service) and the Notice of Removal would be timely.

It is undisputed that on December 4, 1998, the Lanzas received the Summonses that were sent via certified mail from Tabbert. It is also undisputed that on December 7, 1998, the Lanzas received the Summonses that were sent via certified mail from the Clerk of the Marion Superior Court. There is a dispute as to whether copies of the Complaint were enclosed with the Summonses sent from the Clerk — Ms. Lanza says they were not, while the Clerk says they were. From these facts, the court must determine whether the Lanzas were validly served.

As this action was filed in an Indiana state court, the sufficiency of service is determined by Indiana law. Indiana Trial Rule 4.1 governs service on individuals, and provides in relevant part: "Service may be made upon an individual ... by ... sending a copy of the summons and complaint by ... certified mail ... to his residence ... with return receipt requested and returned showing receipt of the letter...." IND. T.R. 4.1(A)(1) (emphasis added). The Indiana Trial Rules also provide that: "No summons or the service thereof shall be set aside or be adjudged insufficient when either is reasonably calculated to inform the person to be served that an action has been instituted against him, the name of the court, and the time within which he is required to respond." IND. T.R. 4.15(F).

The Seventh Circuit has recognized that under Indiana law, the manner of service set forth in Trial Rule 4.1 is "discretionary and therefore serve[s] only to outline general guidelines for service of process." See Swaim v. Moltan Co., 73 F.3d 711, 720 (7th Cir.1996). According to the Indiana Court of Appeals,

Ind. Trial Rule[] 4.1 ... provide[s] that service may be made upon an individual.... In contrast, other rules provide that service shall be made upon certain parties in a designated manner.... The discretionary nature of T.R. 4.1 ..., coupled with the provision in T.R. 4.15(F), ... is evidence that personal jurisdiction is acquired by any method of service of summons which comports with due process.

Washington v. Allison, 593 N.E.2d 1273, 1275 (Ind.Ct.App.1992) (emphasis in original) (citations omitted); see also Swaim, 73 F.3d at 720 (same); Gourley v. L.Y., 657 N.E.2d 448, 450 (Ind.Ct.App.1995) ("[P]ersonal jurisdiction over a party will obtain by any method of service which comports with due process.") (citation omitted); Glennar Mercury-Lincoln, Inc. v. Riley, 167 Ind.App. 144, 338 N.E.2d 670, 675 (1975) ("[T]he test for sufficiency of service of process under TR. 4.15(F) (service is sufficient if `reasonably calculated to inform ...') is identical to the `elementary and fundamental requirement of due process ... notice reasonably calculated, under all the circumstances, to apprise ....'") (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). So in order to determine whether the Lanzas were validly served under Indiana law, the court must determine whether they were served "by any method of service of summons which comports with due process."

"The Due Process Clause of the Fourteenth Amendment requires that service of process be reasonably calculated both to apprise a party of the pendency of an action and to provide it with an opportunity to respond." Swaim, 73 F.3d at 720 (citing Mullane, 339 U.S. at 306, 70 S.Ct. 652). "Indiana has codified this [due process] requirement" in Indiana Trial Rule 4.15(F). Id.; see also Glennar Mercury-Lincoln, 338 N.E.2d at 675 (same). "Service of process that is reasonably calculated to inform, consistent with the letter of Trial Rule 4.15(F), is sufficient even if it fails to actually inform the party to which it is directed." Id. at 721 (citing Buck v. P.J.T., 182 Ind.App. 71, 394 N.E.2d 935, 936 (1979)).

While the court notes that the certifications from the Marion Superior Court Clerk constitute very credible evidence (from a disinterested source) that copies of the Complaint were served on the Lanzas with the Summonses, the court will assume for the purposes of argument that the Lanzas were only served with the Summonses. The issue then, becomes whether service of the Summons satisfies the requirements of Trial Rule 4.15(F), which provides: "No summons or the service thereof shall be set aside or be adjudged insufficient when either is reasonably calculated to inform the person to be served that an action has been instituted...