Webster Industries, Inc. v. Northwood Doors, Inc.
| Decision Date | 13 February 2003 |
| Docket Number | No. C02-3068-MWB.,C02-3068-MWB. |
| Citation | 244 F.Supp.2d 998 |
| Parties | WEBSTER INDUSTRIES, INC., a Minnesota Corporation; Kretz Lumber Co., Inc., a Wisconsin Corporation; Woodline Manufacturing, Inc., a Minnesota Corporation; Wycombe Wood Products, Inc., a Wisconsin Corporation; and Hart Tie & Lumber, Inc., a Wisconsin Corporation, Plaintiffs, v. NORTHWOOD DOORS, INC., an Iowa Corporation; Partridge River Superior, Inc., a Wisconsin Corporation; Partridge River, Inc., a Minnesota Corporation; Partridge River Holdings, Inc., a Minnesota Corporation; Superior Dimension and Doors, L.L.C., a Minnesota Limited Liability Company; China Hardwood Import Products, L.L.C., a Minnesota Limited Liability Company; Andrew Richey; and Michael Miner, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
Ryan Patrick Tang, Litow Law Office, PC, Cedar Rapids, IA, for Plaintiffs.
John Werner, Donna Renae Miller, Grefe & Sidney, Des Moines, IA, for Defendants.
TABLE OF CONTENTS
I. INTRODUCTION ..................................... 1001
II. LEGAL ANALYSIS ................................. 1002
A.Entry Of Default And Default Judgment .............. 1002
B. Arguments Of The Parties .......................... 1004
C. Applicable Rules For Service ...................... 1005
1. The applicable federal rules ...................... 1005
2. Applicable state law rules ........................ 1006
a. Minnesota's rule for service ...................... 1007
b. Applicable Iowa rules for service ................. 1007
i. Service by publication ............................ 1007
ii. Personal service ................................. 1009
D. Setting Aside The Default ......................... 1010
III. CONCLUSION ...................................... 1010
In this lawsuit, which was removed by one of the defendants from the Iowa District Court for Worth County, the plaintiffs assert forty claims, under a variety of the ories, against allegedly related defendants arising primarily from the failure of insolvent defendant Northwood Doors, Inc., to pay for goods and services that the plaintiffs provided to that defendant. This matter is now before the court on motions seeking or challenging the entry of default and default judgment against several of the defendants. The pending motions involve, primarily, the sufficiency of the plaintiffs' attempts to serve those defendants personally or by publication.
This matter comes before the court pursuant to the plaintiffs' Motion For Finding Of Default and Motion For Entry Of Default Judgment (docket no. 31), which was apparently served upon the parties by U.S. Mail on December 27, 2002, but not actually filed with the Clerk of Court until January 28, 2003. This matter also comes before the court pursuant to the defendants' January 30, 2003, Motion To Reconsider Or, In The Alternative, Motion For Relief From Entry Of Default (docket no. 34).
More specifically, the plaintiffs' Motion For Finding Of Default and Motion For Entry Of Default Judgment seeks entry of default and default judgment against defendants Partridge River Superior, Inc., Partridge River, Inc., and Partridge River Holdings, Inc., all three of which are collectively described herein as the "Partridge Defendants," Superior Dimension and Doors, L.L.C., China Hardwood Import Products, L.L.C., and Andrew Richey. Although the motion had not been received or filed by the Clerk of Court, the defendants resisted the motion on January 6, 2003. In essence, the defendants contend that they have never been properly served with the plaintiffs' complaint; therefore, entry of default or default judgment would be inappropriate. The plaintiffs filed a Response To Resistance To Motion For Finding Of Default {i.e., a "reply," see, e.g., N.D. IA. L.R. 7.1(g)) on January 27, 2003, asserting that they had properly served the defaulting defendants by publication pursuant to the applicable Iowa and Federal Rules of Civil Procedure. On January 28, 2003, noting that a resistance and reply had been filed, but that no copy of the motion had ever been filed, the court entered an order directing the Clerk of Court to file what the court had until then believed was a courtesy copy of the plaintiffs' motion sent to the undersigned's chambers. Thereafter, on February 3, 2003, the defendants filed a Reply To Response To Resistance To Motion For Finding Of Default and Motion For Entry Of Default Judgment (i.e., a "surreply," for which there is no specific authorization in either the federal or local rules of procedure) in which they point out what they believe are specific deficiencies in the plaintiffs' attempts to serve them by publication.1 On February 10, 2003, the plaintiffs filed a Reply To Reply To Response To Resistance To Motion For Finding Of Default And Motion For Entry Of Default Judgment (i.e., a "sur-surreply," for which there is, again, no authorization in either the federal or local rules of procedure). In this filing, the plaintiffs, inter alia, admit that their published notice did not run in the county in which the action was filed, because "the case is no longer filed in a county," but is instead filed in federal court. The plaintiffs contend that they should be applauded, not chastised, for publishing notice in a newspaper more likely to provide actual notice to the remaining defendants than a newspaper in Worth County or Woodbury County. Also on February 10, 2003, the defendants filed a Supplemental Statement In Support Of Resistance To Plaintiffs [sic] Motion For Default, in which they state, "If Plaintiffs would simply comply with Iowa Code § 617.3 and Minnesota Statute § 5.25 regarding service of corporations through the Secretaries of State for the respective states, Defendants would file an Answer, and the litigation of this matter could proceed."
On January 28, 2003, pursuant to the plaintiffs' Motion For Finding Of Default and Motion For Entry Of Default Judgment and the court's order directing the Clerk of Court to file that motion that day, the Clerk of Court entered on the record the default of the Partridge Defendants, Superior Dimension and Doors, L.L.C., China Hardwood Import Products, L.L.C., and Andrew Richey. The entry of default by the Clerk of Court prompted the filing on January 30, 2003, of defendants' Motion To Reconsider Or, In The Alternative, Motion For Relief From Entry Of Default. In that Motion To Reconsider, the defendants contend that the Clerk of Court improperly entered default against them, apparently without considering their resistance to the plaintiffs' motion for entry of default. On February 10, 2003, the plaintiffs filed a Resistance To Motion To Reconsider Or, In The Alternative, Motion For Relief From Entry Of Default, in which the plaintiffs assert that the defendants have indeed defaulted and that all of the other issues raised by the defendants in their motion to reconsider have to do with service or jurisdiction, not default, but that the defendants have not appeared nor filed motions attacking service or jurisdiction. The plaintiffs also contend that there is nothing for the court to reconsider, because the Clerk of Court, not the court, entered the default.
Rule 55 of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:
Rule 55. Default
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default.
(b) Judgment. Judgment by default may be entered as follows:
(1) By the Clerk. When the plaintiffs claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person.
(2) By the Court. In all other cases the party entitled to a judgment by fault shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States. (c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).
FED. R. Civ. P. 55(a)-(c). In Hayek v. Big Brothers/Big Sisters of America, 198 F.R.D. 518 (N.D.Iowa 2001), this court summarized the mechanics under Rule 55 of obtaining the entry of default and default judgment, as well as the method for setting aside a default or default judgment, as follows:
Under Rule 55, "[w]hen a party `has failed to plead or otherwise defend' against a pleading...
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Webster Industries, Inc. v. Northwood Doors, Inc.
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