Thalassinos v. Adair

• Decision Date: 20 May 2013
• Docket Number: CIVIL ACTION 13-0187-WS-N
• Parties: TED THALASSINOS, Plaintiff, v. A. JAYSON ADAIR, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

TED THALASSINOS, Plaintiff,

v.A. JAYSON ADAIR, et al., Defendants.

CIVIL ACTION 13-0187-WS-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE: May 20, 2013

ORDER

This matter comes before the Court on plaintiff's Motions for Default Judgment (docs. 8, 9, 10, 11 & 12) against defendants A. Jayson Adair, Kalle Ellis, Doug Jones, Chris Barto, and J.P. Nagel.

I. Background.

The relevant procedural history of this case is as follows: On April 15, 2013, plaintiff Ted Thalassinos, proceeding pro se, filed a Complaint (doc. 1) in this District Court against seven named defendants, to-wit: A. Jayson Adair, Copart, Kalle Ellis, Ellis Automobile Company, Doug Jones, Chris Barto, and J.P. Nagel. The very short Complaint alleges that Thalassinos placed the winning bid in an Internet auction to purchase a 1998 Yale Forklift, that he "submitted funds to these defendants" for said forklift without delay, and that defendants then "refused to deliver the fork lift as promised." (Doc. 1, at 1-2.) Plaintiff maintains that this conduct amounts to a "violation of the Federal Trade Commission Act 15 U.S.C. 41-58 and the U.S. Safe Web Act Pub. L. No. 109-455 Codified to the F.T.C. Act 15 U.S.C. 41 et seq." (Id.) Plaintiff also asserts claims against defendants for fraud, conspiracy to defraud, and breach of contract, demanding judgment of $250,000 on each claim.¹ The Complaint contains no jurisdictional allegations.

The two corporate defendants, Copart and Ellis Automobile Company, have either filed or attempted to file responsive pleadings. (See docs. 5, 7.) The other five defendants (Adair, Kalle Ellis, Jones, Barto and Nagel) have not. Returns of service filed by plaintiff on April 25, 2013, reflect that the individual defendants were served as follows: (i) Kalle Ellis was served via certified mail at 399 Oakridge Church Road in Tifton, Georgia (which is apparently the business address for Ellis Automotive); (ii) Jones, Barto, and Adair were all served via certified mail at 14185 Dallas Parkway, Suite 300, in Dallas, Texas (which is apparently the business address for Copart); and (iii) Nagel was served via certified mail at a street address in Orlando, Florida, where the letter was signed for by someone who stamped "Ann Routhier - Rep." on the return receipt. (Doc. 4.) It appears that all of these certified mailings were delivered by the U.S. Postal Service on April 22, 2013. The receipts indicate that none of these mailings were actually signed for by the named defendant himself or herself.

On May 14, 2013, 22 days after purported service of process, Thalassinos filed Motions for Default Judgment against each of defendants Kalle Ellis, Jones, Barto, Adair and Nagel.

II. Subject Matter Jurisdiction.

Antecedent to evaluating whether default judgment is warranted, the undersigned must consider the threshold question of whether subject matter jurisdiction lies here. "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Friends of the Everglades v. U.S. E.P.A., 699 F.3d 1280, 1289 (11th Cir. 2012) (citation omitted); see also Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1179 (11th Cir. 2011) ("Subject matter jurisdiction of the lower federal courts is determined by Congress in the exact degrees and character to which Congress may seem proper for the public good.") (citation and internal quotation marks omitted). Simply put, federal courts "only have the power to hear cases over which the Constitution or Congress has given them authority." Title Pro Closings, L.L.C. v. Tudor Ins. Co., 840 F. Supp.2d 1299, 1302 (M.D. Ala. 2012). If a federal court oversteps those bright-line boundaries, "it violates the fundamental constitutional precept of limited federal power." Griffith v. Wal-Mart Stores East, L.P., 884 F. Supp.2d 1218, 1221 (N.D. Ala. 2012) (citations omitted).

What this means is that this Court is obliged to scrutinize the Complaint to ensure that the plaintiff has stated an adequate jurisdictional basis before allowing the lawsuit to proceed further. Moreover, because federal courts have narrowly circumscribed jurisdiction, this Court bears anaffirmative duty to inquire sua sponte whenever it appears that subject matter jurisdiction may be lacking. See Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007) ("Federal courts are obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking.") (citation and internal quotation marks omitted).² Indeed, as the Eleventh Circuit has explained, "[t]he jurisdiction of a court over the subject matter of a claim involves the court's competency to consider a given type of case, and cannot be waived or otherwise conferred upon the court by the parties. Otherwise, a party could work a wrongful extension of federal jurisdiction and give district courts power the Congress denied them." University of South Alabama v. American Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (citations omitted).

By filing his Complaint in federal court, Thalassinos invoked federal jurisdiction and therefore must shoulder the burden of demonstrating the existence of subject matter jurisdiction. See, e.g., Underwriters at Lloyd's, London v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010) ("The party commencing suit in federal court ... has the burden of establishing, by a preponderance of the evidence, facts supporting the existence of federal jurisdiction."); McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002) (similar). More fundamentally, Rule 8(a)(1) of the Federal Rules of Civil Procedure requires a plaintiff to include in his complaint "a short and plain statement of the grounds for the court's jurisdiction." Id. Thalassinos did not do so, leaving the Court to guess as to why he contends this action belongs in federal court.³ Without clarification from plaintiff as to the basis on which federal courtjurisdiction is sought, no definitive determination of the presence or absence of subject matter jurisdiction is possible.⁴

To alleviate the uncertainty, plaintiff is ordered to file and serve an amended complaint remedying this defect on or before June 3, 2013. At a minimum, this amended pleading must supplement the allegations of the original complaint with a short and plain statement of the grounds for jurisdiction, along with sufficient supporting facts to demonstrate that federal jurisdiction over this action is proper.⁵

III. Personal Jurisdiction Over Defaulted Defendants.

Assuming (without deciding) the federal subject matter jurisdiction is proper here, Thalassinos still would not be entitled to entry of default or default judgment against defendants Kalle Ellis, Jones, Barto, Adair and Nagel without a further factual showing. In particular, the record reveals substantial questions as to whether any of these defendants has been properly served with process in accordance with applicable procedural rules.

Service of process on an individual within the United States is governed by Rule 4(e), Fed.R.Civ.P. Because he utilized certified mail to attempt service on these defendants, Thalassinos was apparently proceeding under Rule 4(e)(1), which allows service on an individual by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Rule 4(e)(1), Fed.R.Civ.P. The applicable Alabama rule provides that "[s]ervice by certified mail shall be deemed complete and the time for answering shall run from the date of delivery to the named addressee or the addressee's agent as evidenced by signature on the return receipt." Rule 4(i)(2)(C), Ala.R.Civ.P. "Within the meaning of this subdivision, 'agent' means a person or entity specifically authorized by the addressee to receive the addressee's mail and to deliver that mail to the addressee." Id. As noted, all of the certified mail receipts presented by Thalassinos reflect that someone other than the named defendant signed for the delivery. As to these individuals, then, service is good only if the signatory constitutes the defendant's "agent" within the meaning of Alabama's Rule 4(i)(2)(C). Plaintiff has presented no evidence or argument to demonstrate an agency relationship, which is necessary to establish proper service on any of these defendants.

As a pro se plaintiff, Thalassinos might perceive this as gratuitous nitpicking by the Court. Not so. The service of process inquiry is not simply academic, nor is the Court overstepping boundaries by raising the issue sua sponte. The law is well-settled that "[g]enerally, where service of process is insufficient, the court has no power to render judgmentand the judgment is void." In re Worldwide Web Systems, Inc., 328 F.3d 1291, 1299 (11th Cir. 2003). This is because "[s]ervice of process is a jurisdictional requirement: a court lacks jurisdiction over the person of a defendant when that defendant has not been served." Hemispherx Biopharma, Inc. v. Johannesburg Consol. Investments, 553 F.3d 1351, 1360 (11th Cir. 2008) (citation omitted).⁶ Thus, in determining whether to exercise its discretion to take the disfavored action of entering a default judgment against a party that has failed to plead or otherwise defend, "the district court has an affirmative duty to look into its jurisdiction over both the subject matter and the parties.... A court cannot obtain personal jurisdiction over a party without proper service of process." D'Onofrio v. Il Mattino, 430 F.Supp.2d 431, 437-38 (E.D. Pa. 2006) (citations omitted). What this means is that the Court cannot take the action that Thalassinos is requesting (i.e., entry of default judgment against five non-appearing defendants) unless plaintiff first makes a showing that personal jurisdiction has been established over those defendants via...